HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- CRIMINAL APPEAL No. 2030 of 2010
Appellant :- Jagdish Kori
Respondent :- State Of U.P.
Counsel for Appellant :- Jail Appeal,Nisha Srivastava
Counsel for Respondent :- Govt. Advocate,Raghvendra Singh
Hon’ble Virendra Kumar-II,J.
1. Heard Smt. Nisha Srivastava, learned Amicus Curiae for appellant and Mr.Anurag Verma, learned Additional Govrnment Advocate for the State.
2. This appeal has been preferred against the impugned judgment and order dated 18.05.2010 delivered by the then learned Additional Session Judge, Fast Track Court, Court No.30, Baraanki. Accused-appellant Jagdish Kori is detained in jail and he forwarded on 27.05.2010 this appeal through Jailer, district-Barabanki. The accused-appellant has been convicted for the offence punishable under Section 376 I.P.C. and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.5000/- along with default stipulation. In default of deposit of fine the appellant has to undergo additional rigorous imprisonment for one year.
3. The Amicus-curiae Sri Raghvendra Pandey, Advocate was appointed by order dated 05.12.2011 and he was discharged vide order dated 28.08.2017. Smt. Nisha Srivastava, Advocate filed her Vakalatnama on behalf of appellant. Afterwards, on 19.09.2017, she was appointed as Amicus-curiae on behalf of appellant.
4. It is pleaded by the appellant that he is very poor person. There is nobody in his family to do pairavi on his behalf. He has falsely been implicated in this crime. The record of the trial court be summoned and justice be done in this appeal.
5. Learned Amicus-curiae has argued that the victim is deaf and dumb, aged 13 years, whereas her radiological age was found 12 years and below 14 years. Her statement was not recorded during the course of trial with aid of expert. The trial court itself put questions and victim allegedly answered by signs and gestures. The statement of victim is not legally admissible in evidence. It is further argued that PW-1 Dr. Nivedita Kaur has accepted that no external injury was found by her on private part of the victim. She found hymen torned and redness was there around it. No bleeding was found by the doctor, when she medically examined the victim on 07.10.2010.
6. Learned Amicus-curiae has further stated that PW-2 Samsuddin, father of the victim, is not the eye witness and PW-3, mother of the victim- PW-5 have been posed as eye witness, whereas she has not seen the incident as narrated by her. It is further submitted by learned Amicus-curiae that PW-4 Dr. S.K. Singh is Radiologist and formal witness. PW-7 Sub-Inspector Sri Jang Bahadur Singh, Investigating Officer, has conducted investigation, which is tainted and not impartial. The appellant has falsely been implicated in this crime. It is also argued by the learned Amicus-curiae that semen was not found on the clothes provided to the Investigating Officer. There is contradiction in statements of PW-3 and PW-5 regarding the fact, who provided clothes to the Investigation Officer PW-5 either PW-3 or Dr. PW-1. There is delay in lodging the First Information Report of this case, which has not been properly explained.
7. I have perused the record of S.T. No.1487 of 2009; State vs. Jagdish Kori, Crime No.1587 of 2009, under Section 376 I.P.C., Police Station-Haidargarh, District-Barabanki.
8. As per prosecution version, the complainant-Samsuddin, lodged written report (Ext.Ka-3) at Kotwali-Haidargarh, Barabanki on 06.10.2009 at 13:30 hrs. On the basis of this written report, check F.I.R. (Ext.Ka-9) was registered at Police Station-Haidargarh, District-Barabanki of Crime No.1587 of 2009. G.D. Ext. Ka-10 and Ext. Ka-11 registration of crime were also prepared.
9. The complainant has mentioned in the written report that he is Tailer by profession. On 05.10.2009, at about 5:00 p.m., he was present at his shop. The accused-appellant Jagdish Kori son of Ram Charan lured his daughter, aged 13 years, who is deaf and dumb, and he brought her daughter forcibly at his house, where he committed rape with her. It is also mentioned in the First Information Report that wife of the complainant traced her daughter and reached at the place of occurrence and saw the incident. The neighbours also arrived at the place of occurrence and saw the incident. The appellant-accused escaped from the scene of occurrence and threatened his wife for life.
10. The Investigating Officer during the course of investigation on 09.10.2009 prepared the recovery memo (Ext. Ka-5) for taking into possession the clothes worn by the victim at the time of incident. He visited the place of occurrence and prepare the site plan (Ext.Ka-6) and recorded statements of witnesses. After conclusion of investigation, he submitted the charge-sheet (Ext.Ka-7). The victim was medically examined by PW-1, who prepared medical examination report (Ext. Ka-1) and supplementary report (Ext. Ka-2). X-ray of the victim was carried out by PW-4 and X-ray report (Ext. Ka-4) and X-ray plate material Ext.-1 were prepared. PW-1 also prepared the slide of vaginal smear of the victim. Pathologist gave report (Ext. Ka-13), E.M.O. C.H.C. Haidargarh has also medically examined the victim and (Ext. Ka-12) report was prepared by him. He referred the victim vide reference slip (Ext. Ka-14) for further management and examination by lady doctor.
11. After committal of the case of the accused-appellant, learned trial court has framed the charges against the appellant on 07.01.2010 for the offence punishable under Sections 376 and 506 I.P.C. The accused pleaded not guilty and claimed to be tried.
12. The prosecution has adduced evidence of PW-1 Dr. Nivedita Kaur, PW-2 the complainant-Samsuddin, PW-3 Smt. Jaharunnisha wife of the complainant, PW-4 Dr. S.K. Singh Radiologist, PW-5 the victim, PW-6 Akbal Bahadur Singh independent witness, PW-8 Constable Harish Chandra Rawat. These witnesses proved the above mentioned documents.
13. The Investigating Officer sent clothes of the victim, which were taken in possession during course of investigation, for chemical analysis to Forensic Laboratory, Mahanagar, Lucknow. The Joint Director of the Forensic Laboratory has forwarded the chemical analysis report dated 29.12.2009, which is available on record.
14. Statement of the accused was recorded on 13.05.2010 under Section 313 Cr.P.C.. In his statement, he has stated that wrong and false evidence has been adduced by the witnesses. He has falsely been implicated in this crime. The Investigating Officer has prepared fabricated recovery memo of clothes in the presence of PW-6 Akbal Bahadur Singh.
15. The learned trial court after hearing both the parties and appreciation of evidence has convicted the accused-appellant for the offence punishable under Section 376 I.P.C. He has acquitted the accused-appellant for the offence punishable under Section 506 I.P.C.
16. As far as it is argued by learned Amicus-curiae that there is delay of about one day for lodging the F.I.R. of this crime, therefore, consultation and deliberations before lodging the F.I.R. by the complainant cannot be ruled out. PW-2 the complainant and PW-3 Smt. Jaharunnisha, the parents of the victim who was deaf and dumb aged 13 years on the date of incident, has proved this fact that occurrence of rape was committed by the appellant on the date of incident i,.e. on 05.10.2009, at about 5:00 p.m.. PW-2 the complainant has stated that when he returned back at his house after completing his work in the evening, his wife apprised him about the incident. At that point of time, there was heavy rain and it was odd hours of night, therefore, he could not go at the police station. In the morning also there was heavy rain and when it was stopped, he went at the police station along with his wife and the victim. Then he submitted the written report (Ext. Ka-3) at the police station after getting it written by a person, who was available outside the police station. He put his thumb impression on this written report. His wife PW-3 Smt. Jaharunnisha has corroborated evidence of PW-2 her husband and proved the same fact, which were narrated by PW-2.
17. PW-2 in his cross-examination has disclosed that his shop is situated at the distance of 1-1/2 to 2 KM from his house and the house of accused-appellant is situated nearby his house after another house. He has also stated in his cross-examination that his wife apprised him about the incident, when he returned back at the house in the evining. He has clarified this fact that when he went at the police station, he apprised the Sub-Inspector. All the facts and circumstances of the case were narrated, in the presence of his wife and victim, who accompanied him at the police station. The Sub-Inspector instructed him to get prepared written report from the person available outside the police station, then he submitted written report at the police station.
18. Learned Amicus-curiae has argued that report of this crime was lodged with the consultation and deliberation of the Sub-Inspector available at the police station. There is no substance in this argument because on perusal of the written report (Ext. Ka-3), it reveal that the thumb impression of the complainant is available on this report, which shows that the complainant is illiterate person. No cross-examination has been conducted on behalf of the accused-appellant that the person who wrote this written report was in any way connected with the Sub-Inspector available at the police station. No such suggestion was given to the complainant that the report (Ext. Ka-3) was lodged by the complainant with consultation and deliberation of the Sub-Inspector available at the police station. The complainant PW-2 has refuted this suggestion put forth on behalf of the accused-appellant that the complainant molested his wife 3-4 months ago, who complained to the accused and for this reason the accused-appellant scolded him (the complainant) and he was ashamed due to this incident and his reputation in the village was adversely affected and the complainant lodged this F.I.R. for taking revenge of this incident.
19. PW-3 Smt. Jaharunnisha wife of the complainant in her examination-in-chief and the cross-examination has disclosed this fact that she usually go to attend the natural call at some distance from the village in the darkness and when she returned on the date of incident after attending the natural call, she found that her younger children were present, elder son was not present, victim was also not present at the house. During the course of searching the victim, she reached in the house of the appellant and she climbed on the roof of the house through ladder kept on wall of the court-yard, where she found that the accused-appellant had removed the clothes of her daughter. Her mouth was shut by him and he was committing rape with her. She tried to catch and hold the accused-appellant he abused her and threatened her for life and fled away. She also raised alarm. She has also stated that Salwar of her daughter was soaked with blood. She brought the victim at her house. These clothes were handed over by her to the Investigating Officer (Sub-Inspector).
20. PW-3 has stated further that her husband (PW-2) came back at the house in the evening. She apprised him about the incident. Due to it was night and rains, they could not go to the police station. In the morning there was also heavy rains, therefore, they went at about 12:00 p.m. at the police station, where her husband lodged the F.I.R. at the police station.
21. PW-3 witness has refuted this suggestion given by the learned counsel for the accused-appellant that unknown person committed rape with her daughter and her husband (the complainant) lodged F.I.R. against the accused/ appellant due to enmity. Learned Amicus-curiae has argued that PW-3 has accepted in her cross-examination that she did not apprise the villagers and wife of the accused regarding incident. She has accepted that her husband and accused Jagdish Kori were not having cordial relations or talking terms.
22. No suggestion has been given to PW-3 that report of this crime was lodged against the appellant by the complainant, because he molested his wife and the appellant scolded the complainant, therefore, his reputation was adversely affected in the village. As a result of which, her husband lodged the First Information Report against the accused-appellant for taking revenge or her husband lodged F.I.R. with the consultation of Sub-Inspector available at the police station. Therefore, there is no substance in arguments of learned Amicus-curiae in this regard.
23. As far as it is argued by the Amicus-curiae that accused has falsely been implicated in this crime due to incident of molestation committed by the complainant with his wife. No such defence evidence has been adduced on behalf of the accused-appellant. He could have examined him under Section 315 Cr.P.C. by taking permission of the court as defence witness or he might have produced some other person/ villager regarding this incident of alleged molestation of his wife by the complainant.
24. Therefore, there is no substance in the argument of learned Amicus-curiae that F.I.R. of this case was lodged due to this reason and with the consultation and deliberations. PW-2 and PW-3 witnesses have explained the delay in lodging an F.I.R. of this case due to heavy rains at night on the date of incident and in the next early morning. They could reach at the police station at about 12:00 p.m. on the next day of the incident. Therefore, there is no substance in the arguments of learned Amicus-ciriae that there was any undue delay in lodging the First Information Report of this case. In this regard, in the case of State of Punjab vs. Gurmit Singh others reported in 1996 SCC (2) 384 the Hon’ble Supreme Court has held as under:-
“The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of Xth Class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the Bus Adda is traverisity of justice. The court over-looked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alram.
Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. Trial Court fell in error for discrediting the testimony of the prosecutrix on that account.
In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.
The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the center and waited till she went home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court over-looked that a girl, in a tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination center under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over-powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy. Therefore her informing to her mother only on return to the parental house and no one else at the examination center prior thereto is an accord with the natural human conduct of a female.
The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.
The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.
The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.
It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
Hon’ble the Supreme Court in the case of Mukesh and others Vs. State of NCT of Delhi and others reported in (2017) 6 SCC 1 has observed as under:
According to Hon’ble Mr. Justice Dipak Mishra for himself (presently Hon’ble C.J.I.) and Hon’ble Mr. Justice Ashok Bhushan held in paragraph nos. 49, 53, 55, 56 and 57 regarding delay in lodging F.I.R. in cases of offence committed against women and other victims as follows :-
49. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.
53. In State of Himachal Pradesh v. Rakesh Kumar (2009) 6 SCC 308, the Court repelled the submission pertaining to delay in lodging of the FIR on the ground that the first endeavour is always to take the person to the hospital immediately so as to provide him medical treatment and only thereafter report the incident to the police. The Court in the said case further held that every minute was precious and, therefore, it is natural that the witnesses accompanying the deceased first tried to take him to the hospital so as to enable him to get immediate medical treatment. Such action was definitely in accordance with normal human conduct and psychology. When their efforts failed and the deceased died they immediately reported the incident to the police. The Court, under the said circumstances ruled that in fact, it was a case of quick reporting to the police.
Judged on the anvil of the aforesaid decisions, we have no hesitation in arriving at the conclusion that there was no delay in lodging of the FIR.
55. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. In this context, reference to certain authorities would be fruitful.
56. In Rattan Singh v. State of H.P. (1997) 4 SCC 161, the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. The Court also referred to the principles stated in Pedda Narayana v. State of A.P. (1975) 4 SCC 153; Sone Lal v. State of U.P. (1978) 4 SCC 302; Gurnam Kaur v. Bakshish Singh 1980 Supp SCC 567.
57. In State of Uttar Pradesh v. Naresh and Ors (2011) 4 SCC 324, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. For the aforesaid purpose reliance was placed upon Rotash v. State of Rajasthan (2006) 12 SCC 64 and Ranjit Singh v. State of M.P. (2011) 4 SCC 336.”
The Hon’ble Supreme Court in case of Ponu Samy Vs. State of Tamilnadu reported at (2008) 5 SCC 587 (c), has held that police Apathey and village women’s endeavour, social condition of complainant can be taken into account while considering delay in lodging F.I.R.
In case of Vishwanathan Vs. State reported at (2008) 5 SCC 354, Hon’ble Supreme Court held that prosecution case should not be thrown out on ground of delay other factors like trauma suffered by victim, sociological factors alongwith other evidence should be taken into consideration.
In case of Animireddy Venkatramana Vs. Public Prosecutor High Court A.P. reported (2008) 5 SCC 368 (f d), the Hon’ble Supreme Court held that discrepancies in F.I.R. merely because case against some accused named in it could not be established or some inquiries were made to ascertain truth of incident prosecution case cannot be discarded. F.I.R. need not be encyclopedic, each and every detail need not to be stated in it. Court has to ascertain about possibility of false implication of accused. It is also observed that probable, physical and mental condition of informant is relevant.
In case of Darshan Singh and others Vs. State of Punjab reported at AIR 1983 SC 554, the Hon’ble Supreme Court held that the fact that the names of some accused are not mentioned in the FIR is a circumstance which the prosecution has to explain, though, no rule of law stipulates that an accused whose name is not mentioned in the FIR is entitled to acquittal.
Eqbal Baig Vs. State of A.P. reported at AIR 1987 SC 923, the Supreme Court held that non-mention of name of accused in FIR and inquest report by witness not a ground for rejecting his evidence.
In case of Betal Singh Vs. State of M.P. reported at 1996 Crl.J. page 4006 (SC), Babu Singh Vs. State of Punjab 1996 (33) ACC 474 SC Baldev Singh Vs. State of Punjab 1995 ACC 752 (SC) Bijay Singh Vs. State of Bihar 2003 SCC (Crl.) 1093, Hon’ble Supreme Court in these cases has held that mention of few facts or vague facts or if detailed particulars of occurrence are not mentioned in the FIR, then minute details of occurrence is not required as FIR is not encyclopedia of occurrence. In case of Bijay Singh (supra), it is also held that FIR is not substantive piece of evidence of occurrence.
In case of Bhaskaran Vs. State of Kerala reported at 1998 (9) SCC 12/AIR 1998 SC 476, the Hon’ble Supreme court has held that distance of police station from place of occurrence was 15 km in this case. No conveyance was available. FIR was lodged after 24 hrs. In these circumstances, it was held that evidence of eye witness cannot be disbelieved on the ground that they made no attempt to save the deceased from attack. Investigating Officer had not seized the torch source of light. The evidence of eye witness was not discarded.
Hon’ble Supreme Court in case of Ravinder Kumar and Anr. vs. State of Punjab reported at AIR 2001 SC 3570 observed as under :-
……The attack on the prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. OF course a prompt and immediate lodging of the FIR is the ideal as that would given the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
….. When there in criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of uncoversantness is not too uncommon among urban people also. They might not immediately think of going as the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or seductiveness of temper of moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
…… We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab AIR1991SC63 ; Jamna vs. State of UP 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”
….. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab AIR1991SC63; Jamna vs. State of UP 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”
25. Learned Amicus-curiae has further argued that the statement of the victim, who is deaf and dumb, was recorded without aid and assistance of interpretor/ expert. It is relevant to mention here that the learned trial court has observed demeanor of PW-5 victim and recorded her statement on the basis of answers given by the victim by signs and gestures. The victim also indicated by pointing out by her hands. Learned counsel for the accused-appellant did not dispute identification of the victim. Her statement was recorded by putting some questions prior to recording of her statement and after satisfaction learned trial court permitted the prosecution to examine PW-5 in presence of learned counsel for the defence.
26. The victim answered question No.1 positively that rape was committed with her forcibly. She answered question No.3 by pointing out the accused-appellant, who was present in the trial court, that he committed rape with her. She pointed out and indicated that accused-appellant opened ‘Nara’ of her Salwar. She answered question No.4 by gesture that incident was occurred at the time of sun set 1-2 years ago. Another questions were not answered by the victim, regarding questions that her mother told her to state these facts or wife of the accused was present in the house or not or where incident was committed by the accused. But PW-5 the victim has answered the material questions specifically and disclosed by indicating towards the accused before the trial court that he committed rape with her.
27. Regarding witnesses who are deaf and dumb in the recent judgment delivered on 24.10.2017 in Criminal Appeal No.1820 of 2017 (Arising out of SLP (Crl.) No.2172 of 2014); the State of Maharashtra vs. Bandu @ Daulat, the Hon’ble Supreme Court has observed as under:-
“3. The victim is deaf and dumb and mentally challenged to some extent. Main evidence on record is of PW-1, Asha Ramratan Bangar @ Asha Panchu Dhurve, the mother of the victim. She lodged FIR on the next day i.e. 30th June, 2008 to the effect that the accused was the landlord of the house in which they were living. The victim was lured away by the accused by offering some sweet meat and was taken to the market. She did not return home and it was at 9.30 p.m. in the night that two boys brought her home. The victim explained to her mother by gesture as to what happened. On this version, FIR was registered and investigation was carried out. Medical examination of the victim confirmed the commission of rape. The age of the victim at the time of the commission of the offence was about 14 years.
4. The High Court held that since the victim herself was not examined, the factum of rape and involvement of the accused could not be held to have been proved. This is the basis of the order of the High Court.
5. Mr. Nishant R. Katneshwarkar, learned counsel for the State, submitted that even though the victim may be the best witness to establish the charge of rape, having regard to the fact that the victim in the present case was deaf and dumb and mentally retarded, even in absence of her being examined as a witness, there was sufficient evidence warranting conviction of the accused.
7. The evidence of the mother of the victim clearly shows that it was the respondent-accused who took away the victim. The victim and the accused were seen together by PW-2, Gajanan Marutrao Sonule on the date of commission of offence. The victim immediately after the occurrence narrated the same to her mother as to what happened as reflected in the FIR and the version of the PW-1. Rape has been confirmed by medical evidence. Identity of accused is not in dispute. In these circumstances the trial court having convicted the respondent, the High Court was not justified in setting aside the conviction.
8. Accordingly, we restore conviction of the respondent under Section 376 IPC and sentence him to undergo rigorous imprisonment for seven years. He may be taken into custody to serve out the remaining sentence.”
Therefore, non-examination or absence of interpretor at the point of time of recording the statement of PW-5 is immaterial, because capability of PW-5 to state by signs, pointing out and gesture was tested by the trial court, before recording her statement. Therefore, there is no substance in the argument put forth by the learned Amicus-curiae in this regard.
28. Learned Amicus-curiae has also argued that there is contradiction in the statement of PW-3 mother of the victim, PW-7 Investigating Officer and PW-6 Akbal Bahadur Singh regarding the fact that in which circumstances clothes worn by the victim at the time of incident were collected and handed over to the Investigating Officer and sent to the Forensic Laboratory, Mahanagar, Lucknow for chemical analysis. It is also submitted that as per chemical examination report semen was not available on the clothes of the victim sent for chemical examination. Likewise no spermatozoa was found according to Pathologist’s report (Ext. Ka-13) in the vaginal smear’s slide prepared by the PW-1 at the time of medical examination of the victim.
29. PW-7, the Investigating Officer has stated that he prepared recovery memo (Ext. Ka-5) in the presence of public witnesses i.e. Brijesh Kumar Singh and Akbal Bahadur Singh (PW-6) regarding the clothes of the victim, which were worn by her at the time of incident. He took these clothes in his possession and he sent them to the Forensic Laboratory for chemical analysis.
30. PW-6, Akbal Bahadur Singh has also proved this fact that clothes of the victim were taken into possession by the Sub-Inspector (Investigating Officer) after four days of the incident in his presence. Recovery memo, Ext. Ka-4 and Ext.Ka-5, were proved by this witness and stated that these clothes were sealed in his presence and recovery memo bears his thumb impression. During his cross-examination, no material fact or contradiction was elicited by the learned defence counsel. In his examination-in-chief and cross-examination, he has disclosed that recovery memo was read over to him, then he put his thumb impression on it. He has identified the clothes of the victim in his statement of cross-examination. He has also disclosed this fact in his cross-examination that the complainant (PW-2) apprised him about the rape committed by the appellant with the victim.
31. PW-7, the Investigating Officer has inspected the place of occurrence on identification made by Smt. Jaharunnisha (PW-3). He has proved the site plan (Ext. Ka-6). He had stated in his examination-in-chief that doctor concerned collected the clothes of the victim worn at the time of incident and provided to Smt. Jaharunnisha, who made available these clothes to him. Therefore, there is no material contradiction in the statements of PW-3, PW-6 and PW-7 regarding the fact that in which circumstances clothes of the victim were provided to the Investigating Officer (PW-7).
32. PW-7, the Investigating Officer, has stated in his statement that on 05.11.2009 he along with constable Harish Chandra Rawat went in the court of A.C.J.M.-17 along with cloths of the victim and these were sent for chemical examination by the court. Three copies of the medical examination report were also provided to the Presiding Officer of the court, which were attested and clothes were sent to the Forensic Laboratory, Mahanagar, Lucknow. He has also proved the charge-sheet (Ext. Ka-7).
33. During his cross-examination PW-7 has also stated that mother of the victim provided him blood stained clothes of the victim and he prepared recovery memo and sealed these clothes. He has also stated that when he visited place of occurrence on 06.10.2009, the accused-appellant and his family members fled away after locking out the house. On 09.10.2009, he again visited the place of occurrence, where wife and mother of the accused-appellant were present.
34. He has disclosed in his examination-in-chief that accused was arrested on 07.10.2009. He has refuted this suggestion of learned defence counsel that accused was arrested from his house. He has specifically stated in his cross-examination that accused-appellant was arrested by him on tipoff given by informer from railway crossing situated at village Bechwa.
35. Therefore, no material contradiction could be elicited during the course of examination of the Investigating Officer PW-7, on the basis of which investigation of this crime could be termed as tainted or partial as argued by learned Amicus-curiae. Therefore, there is no substance in the arguments of learned Amicus-curiae in this regard.
36. PW-8) constable Harish Chandra Rawat is formal witness, who has accompanied PW-7 for preparation of docket of blood stained clothes for sending them for chemical examination at Forensic Lab. He has proved receipt of Forensic Lab (Ext. Ka-8). No material contradiction was elicited in his cross-examination, which could extend benefit to the appellant in any way.
37. Learned Amicus-curiae has further submitted that according to the medical examination report (Ext.Ka-1) and supplementary report (Ext. Ka-2) hymen of victim was found torn, only redness was seen around the hymen. No bleeding was found on the private parts of the victim. Likewise, her vagina admitted one finger. No spermatozoa and the semen were found in the slide of vaginal smear prepared by PW-1 Dr. Nivedita Kaur (PW-1) has medically examined the victim on 07.10.2009 and even after about 48 hours redness was found around the hymen of the victim. PW-1 has stated that mother of the victim (PW-3) apprised her that there was bleeding from vagina of victim after incident. PW-1 found hymen of the victim torn, but it was not healed. She found redness around hymen. She has specifically stated that this redness could appear after sexual intercourse with the victim. During her cross-examination PW-1 has specifically stated that hymen of victim was not torned for any other reason.
38. Learned Amicus-curiae has relied upon the facts stated by PW-1 in her cross-examination that she did not find any injury on the body or private part of the victim, except redness around hymen. She has also accepted that if victim went to attend the natural call and any wooden or blunt object stuck in vagina, then hymen could be torned and redness may occur. No such defence evidence has been adduced on behalf of appellant during course of trial that in which circumstances the victim sustained this injury, as suggestion was putforth to PW-1. PW-1 has specifically stated that this redness could occur after sexual intercourse and hymen could be torned for this reason. PW-1 has proved Ext.Ka1 medical examination report prepared by her at the point of time of medical examination conducted by her. She has also proved supplementary report Ext. Ka-2.
39. Regarding non-presence of spermatozoa in vaginal smear and swab and absence of injury on the private part of the victim, the following case laws are relevant:-
Hon’ble Supreme court (Division Bench) in the case of State of Himachal Pradesh vs. Gian Chand AIR 2001 SC 2075 hs observed as follows:-
12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.
In the present case, PW-1 – the mother of the prosecutrix is a widow. The accused is a close relation of brother of husband of PW1. PW1 obviously needed her family members consisting of her in-laws to accompany her or at least help her in lodging the first information report at the police station. The incident having occurred in a village, the approach of the in-laws of PW1 displayed rusticity in first calling upon the father of the accused and complaining to him of what his son had done. It remained an unpleasant family affair on the next day of the incident which was tried to be settled, if it could be, within the walls of family. That failed. It is thereafter only that the complainant, the widow woman, left all by herself and having no male family members willing to accompany her, proceeded alone to police station. She has lent moral support by Ruldu Ram, the village Panch, whereupon the report of the incident was lodged. The sequence of events soon following the crime and as described by the prosecution witnesses sounds quite natural and provides a satisfactory explanation for the delay. It was found to be so by the learned Sessions Judge. The High Court has not looked into the explanation offered and very superficially recorded a finding of the delay having remained “unexplained” and hence fatal to the prosecution case. It is common knowledge and also judicially noted fact that incidents like rape, more so when the perpetrator of the crime happens to be a member of the family or related therewith, involve the house of the family and therefore, there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the court. A cool thought may precede lodging of the FIR. Such are the observations found to have been made by this Court in State of Punjab v. Gurmit Singh and others, 1996 CriLJ1 728 and also in the case of Harpal Singh 1981 Cri L J1 . We are satisfied that the delay in making the FIR has been satisfactory explained and, therefore, does not cause any dent in the prosecution case.
Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the Court leveled against the prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. The court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence which though available has been withheld from the Court then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well-settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on. “If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with case involving sexual molestations.” – is the law declared in State of Punjab v. Gurmit Singh and others (1996) 2 SCC 384 State of Rajasthan v. N.K. (2000 5 SCC 30 , State of Himachal Pradesh v. Lekh Raj and another (2000) 1 SCC 247 and, Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204].
15. The observations made and noted by Dr. Mudita Gupta during medico legal examination of PW7 clearly make out the prosecutrix having been subjected to rape. The prosecutrix has spoken of “penetration” in her statement. The discovery of spermatozoa in the private part of the victim is not a must to establish penetration. There are several factors which may negative the presence of spermatozoa. [See – Narayamma v. State of Karnataka (1994) 5 SCC 728. Slightest penetration of penis into vagina without rupturing the hymen would constitute rape. [See – Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204]
Hon’ble Supreme court(3 Judges Bench) in the case of State of Andhra Pradesh vs. Polamala Raju @ Rajarao AIR 2000 SC 2854 has observed as follows:-
8. The age of the prosecutrix in the instant case was admittedly five years at the relevant time. Normal sentence under Section 376(2) IPC in a case where rape is committed on a child below 12 years of age, is ‘not less than 10 years R.I. ‘an expression which is pre-emptory in nature. The Courts are obliged to respect this legislative mandate when the case falls under the proviso. The proviso to Section 376(2) IPC, however lays down that in exceptional cases, “for special and adequate reasons”, sentence of less than 10 years R.I. may also be awarded in a given case. The proviso, in our opinion, would come into play only when there are “adequate and special reasons” available in a case. Those reasons need to be disclosed in the order/ judgment itself so that the appellate forum is in a position to know as to what weighed with the court in awarding a sentence less than the minimum prescribed under the Act.
9. We are of the considered opinion that it is an obligation of the sentencing court to consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the gravity of the offence. The sentencing Court must hear the loud cry for justice by the society and more particularly, in cases of heinous crime of rape of innocent help less children, as in this case, of the victim of crime and respond by imposing a proper sentence.
13. In the instant case, we have perused the record. We have noticed the “reasons” for reduction of sentence. We are unhappy with the manner in which the sentence has been reduced from the statutory minimum of 10 years R.I. to 5 years R.I.
Hon’ble Supreme court(Division Bench) in the case of Aman Kumar and Anr. vs. State of Haryana AIR 2004 SC 1497 has observed as follows:-
7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (See Joseph Lines IC K 893) . It is well-known in the medical world that the examination of smegma loses all importance after twenty four hours of the performance of the sexual intercourse…..”
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511 IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC….”
14. Modesty can be described as the quality of being modest; and in relation to woman, “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions…..”
Hon’ble Supreme court (3 judges Bench) in the case of Malkhan Singh and Ors. vs. State of Madhya Pradesh AIR 2003 SC 2669 has observed as follows :-
5. The trial Court as well as the High Court have carefully considered the evidence on record and have come to the conclusion that the delay, if any, in lodging the first information report was fully explained by the prosecutrix and was strongly supported by the circumstantial evidence on record. The courts below have noticed the fact that the prosecutrix was living all alone and was an unmarried person, about 28 years of age. She did not have any family member to whom she could have narrated her story immediately after the occurrence. Moreover the sense of shame coupled with the fear on account of threats given out by the appellants must have deterred her from immediately reporting about the occurrence to others. Even so, according to her, she narrated the incident to Shri Dutta, Deputy Director of Education on March 6, 1992. Later she narrated the incident to one of her colleagues whom she found to be sympathetic towards her and thereafter when her cause was taken up by the teachers association, she could muster courage to lodge a report with the Superintendent of Police. The courts below have, therefore, rightly held that in the facts and circumstances of the case, the mere delay in lodging of the first information report does not discredit the prosecution case. The courts below have also examined the medical evidence on record and have observed that the medical evidence, to some extent, supported the case of the prosecution that the prosecutrix may have been subjected to forcible sexual intercourse within a week or two of her medical examination. The medical evidence also indicted that the prosecutrix was not habituated to sexual intercourse. We find no reason to dis-agree with the findings recorded by the courts below on these aspects of the matter.
11. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
17. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their cases as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must be got imprinted in her memory, and there was no chance of her making a mistake about their identify. The occurrence took place on March 4, 1992 and she deposed in Court on August 217, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record.
Hon’ble Supreme court(Division Bench) in the case of State of Punjab vs. Ramdev Singh AIR 2004 SC 1290 has observed as follows:-
1. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity – it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty MANU/ SC/ 0245/ 1996 MANU/ SC/ 0245/ 1996 : AIR1996SC922 , the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ‘Constitution’) The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and several. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.
9. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as done by the High Court in the present case.
10. The evidence of PWs-4 and 5 read with that of the victim clearly explained as to why the first information report was lodged after 17-18 days. The evidence of the aforesaid three witnesses clearly show that PW-5 was seriously ill and the family members did not want to create tension in his mind when he was not physically well and waited for his recovery. In spite of the lengthy cross-examination this aspect has not been shaken by the defence. The view of the High Court that PW-4 should have told some respectable person or the father earlier to say least is a view which has no foundation and overlooks the very reason to shun or openly publicise it to avoid the ignominy involved in it. In a tradition bound and conservative society, more particularly in a rural area, the shame of sexual assault on a girl of about 14 years cannot be lost sight of. This down to earth reality has been lost sight of by the High Court. The trial Court had rightly emphasized this aspect, but unfortunately, the High Court took a contrary view irrationally.
11. Further, the victim’s evidence has been discarded by holding that it is at variance with the medical evidence. The High Court has not indicated as to in what way it is at variance with the medical evidence. Mere statement that according to doctor, victim’s vagina admitted two fingers and she could on earlier occasions have had sexual intercourse five, ten or fifteen times rules out rape by accused once as alleged in no way casts doubt on victim’s evidence.
12. Learned counsel for the respondent-accused pointed out that rape as claimed by the victim was discounted by the evidence of PW-2, who did not find visible injury when she medically examined the victim. In our opinion the same is of no consequence. The doctor examined the victim after about 3 weeks. That being so, the effect of the act on the physical form was practically obliterated. That is not denied by the doctor. Merely because the friend of the victim was not examined that also cannot be a suspicious circumstance to throw suspicion on the victim’s evidence.
13. Another factor which seems to have weighed with the High Court is the evidence of doctor PW-4 that there were signs of previous sexual intercourse on the victim. That cannot, by stretch of imagination, as noted above, be a ground to acquit an alleged rapist. Even assuming that the victim was previously accustomed sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give license to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behavior earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Finally, if we may say as a last straw, is the fallacy in High Court’s reasoning about lack of evidence relating to the employment of the victim as a maid servant. The High Court completely overlooked the fact that the suggestions given to witnesses, more particularly PWs-4, 5 and 7 that the accused or his wife had threatened to put an end to the victim’s service as a maid servant because of her immoral character, or refusal to refund the amount taken as advance for her employment as a maid servant.
14. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do.
15. As was noted by this Court in State of Rajasthan v. Noore Khan 2000 (3) Supreme 70
“Absence of injuries on the person of the prosecutrix has weighed with the High Court for inferring consent on the part of the prosecutrix. We are not at all convinced. We have already noticed that the delay in medical examination of the prosecutrix was occasioned by the factum of the lodging of the FIR having been delayed for the reasons which we have already discussed. The prosecutrix was in her teens. The perpetrator of the crime was an able-bodied youth bustling with energy and determined to fulfil his lust armed with a knife in his hand and having succeeded in forcefully removing the victim to a secluded place where there was none around to help the prosecutrix in her defence. The injuries which the prosecutrix suffered or might have suffered in defending herself and offering resistance to the accused were abrasions or bruises which would heal up in the ordinary course of nature within 2 to 3 days of the incident. The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case.”
16. The High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefits thereof where none reasonably exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females or minor children. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children.
Hon’ble Supreme Court in the case of Mukesh and ors (supra) Hon’ble R. Bhanumati, J has delivered concurrent judgment and held regarding presence of injuries on the private part of the victim and appreciation of her solitary evidence as under:-
15. At the same time while dealing with cases of rape, the Court must act with utmost sensitivity and appreciate the evidence of prosecutrix in lieu of settled legal principles. Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character. It is now well-settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination etc., if the same is found natural and trustworthy.
16. Persisting notion that the testimony of victim has to be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is to add insult to womanhood. Ours is a conservative society and not a permissive society. Ordinarily a woman, more so, a young woman will not stake her reputation by levelling a false charge, concerning her chastity. In State of Karnataka v. Krishnappa, (2000) 4 SCC 75, it was held as under:-
“15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity — it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. ……
16. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. [emphasis supplied]”
17. There is no legal compulsion to look for corroboration of the prosecutrix’s testimony unless the evidence of the victim suffers from serious infirmities, thereby seeking corroboration. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, it was held as under:- “9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. ………
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) …………
11. …….. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. ……. [emphasis supplied]” It was further held in Bharwada Bhoginbhai Hirjibhai (supra) that if the evidence of the victim does not suffer from any basic infirmity and the “probabilities-factor” does not render it unworthy of credence, there is no reason to insist on corroboration except corroboration by the medical evidence. The same view was taken in Krishan Lal v. State of Haryana (1980) 3 SCC 159.
18. It is well-settled that conviction can be based on the sole testimony of the prosecutrix if it is implicitly reliable and there is a ring of truth in it. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not requirement of law but a guidance of prudence under given circumstances. In Rajinder alias Raju v. State of Himachal Pradesh, (2009) 16 SCC 69, it was held as under:- “19. In the context of Indian culture, a woman–victim of sexual aggression–would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.”
47. If considered on the anvil of settled legal principles, injuries on the person of a rape victim is not even a sine qua non for proving the charge of rape, as held in Joseph v. State of Kerala (2000) 5 SCC 197. The same principle was reiterated in State of Maharashtra v. Suresh (2000) 1 SCC 471. As rightly held in State of Rajasthan v. N.K., The Accused (2000) 5 SCC 30, absence of injury on the person of the victim is not necessarily an evidence of falsity of the allegations of rape or evidence of consent on the part of the prosecutrix. In the present case, the extensive injuries found on the vagina/private parts of the body of the victim and injuries caused to the internal organs and all over the body, clearly show that the victim was ravished.
40. According to X-ray report (Ext. Ka-4), PW-1 Dr. Nivedita Kaur has prepared the supplementary reort (Ext. Ka-2) and has stated that radiological age of the victim was above 12 years and below 14 years at the time of medical examination on 07.10.2009. Therefore, medical evidence adduced by PW-1 and PW-4 Radiologist Dr. S.K. Singh, corroborates version of PW-2, PW-3 and PW-5. PW-3 and PW-5 have proved this fact that on the date of incident appellant committed rape forcibly with the victim. PW-5, who was deaf and dumb and minor, was found on the roof of the house of the appellant on 05.10.2009, at about 5:00 p.m. by PW-3, when the appellant was committing rape with her.
41. E.M.O., C.H.C. Haidargarh, Barabanki prepared medical examination report (Ext. Ka-12), and found no external injury on the body of the victim. He referred the victim for Gynecology opinion and further medical check-up.
42. Learned Amicus-curiae has argued that in this medical examination report (Ext. Ka-12)) the concerned doctor has written that unknown person has allegedly committed rape with the victim. It is pertinent to mention here that there was no occasion for the doctor concerned i.e. E.M.O., C.H.C., Haidargarh to inquire about accused, but his primary duty was to give treatment to the victim. Ultimately, he referred the victim to the Gynecological opinion and further medical check-up. He has prepared (Ext. Ka-14) reference slip on 06.10.2009 at 5:00 p.m. In this regard, the Hon’ble Supreme Court in the case of Pattipati Venkaiah vs. State of Andhra Pradesh reported in AIR 1985 Supreme Court 1715, in para-17 has observed as under.
“17. Another argument advanced before us was that although PWs 1 and 2 were supposed to be eye-witnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the Doctor. It is well settled that Doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.”
43. Learned Amicus-curiae has further argued that PW-2 and PW-3 are parents of victim PW-5. PW-2 has not witnessed the incident. Presence of PW-3 at the place of occurrence is doubtful, as she has stated that so many people gathered at the place of occurrence. No independent witness has been produced by the prosecution.
Hon’ble the Apex Court in the following case laws regarding interested witnesses and non-production of independent witnesses has held as under:-
Hon’ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para 16 has observed as under:-
“16. …… The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected.”
Hon’ble Supreme Court in Nirmal Singh and another Vs. State of Bihar reported in (2005) 9 SCC 725 has held as under:-
…..With these facts in the background, we have to consider whether the ocular testimony of Pws. 1, 3, 4, 5, 6, 8 11 should be discarded. It is no doubt true that the eye witnesses are related to each other but that is to be expected since the occurrence took place in the dalan of the house of the deceased. The evidence of the eye witnesses does not suffer from any infirmity, and appears to be convicting. No significant contradiction or infirmity has been brought to our notice.
In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.
Hon’ble Supreme Court in the case of Hukum Singh and others Vs. State of Rajasthan reported in 2000 (7) SCC 490 has held as under:-
8. Bhupender Pal (PW. 4) and Ram Pyari (PW. 5) were the two eye witnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW. 9. The version spoken to by PW. 4 in Court is substantially a reiteration of the version which he supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are “interested witnesses”. The only premise for dubbing them as “interested witnesses” is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder. [Vide Dalip Singh v. State of Punjab  1 SCR 145, Guli Chand v. State of Rajasthan 1974 CriLJ 331 and Dalbir Kaur v. State of Punjab: 1977CriLJ273 ].
15. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor’s duty to the Court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in Court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.
Hon’ble Supreme Court in State of Rajasthan Vs. Hanuman reported in AIR 2001 SC 282 has held as under:-
“The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.”
Hon’ble Supreme Court in the case of Surendra Narain alias Munna Pandey vs. State of U.P. reported in AIR 1998 SC 192 has held as under:
“22. Turning to the facts of this case, it is seen that PW 1 had mentioned the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his “Sala” and PW 1 was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, “there is not a scintilla of evidence” that PW 1 had a grudge against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother’s son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a long time does not appear to be bona fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.
23. The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted.
Hon’ble Supreme Court in the case of Banti @ Guddu vs. State of Madhya Pradesh reported in AIR 2004 SC 261 has held as under:
“10. Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.”
Hon’ble Supreme Court in the case Periyasami vs. State of Tamil Nadu reported in (2014) 6 SCC 59, in which, in para-15 the following has been observed:
“15. At the outset, wee must deal with the submission that the prosecution has not examined any independent witnesses. It is common knowledge that when the terrorists unleash a way of terror, no independent witnesses are ready to come forward and depose against them. The prosecution case cannot be rejected on this ground. In any case, the evidence on record is cogent and reliable and, therefore, non-examination of independent witnesses does not have any adverse impact on the prosecution. We may also note that the evidence of defence witnesses does not inspire confidence and has rightly not been taken into consideration by the trial court. Pw-14 Chandra, wife of PW-15 Sevi Periyasamy turned hostile. Some other formal witnesses also turned hostile. Thus, however, has not affected the core of prosecution case which is established by reliable evidence. We shall now deal with the evidence which, in our opinion, bears out the prosecution case.”
44. I have evaluated evidence of PW-2, PW-3 and PW-5. Their evidence is corroborated by medical evidence adduced by PW-1 Doctor concerned and PW-4 Radiologist. Evidence of these witnesses are reliable, trustworthy, credible and inspires confidence. The evidence adduced by them cannot be discarded on the ground that no independent witness was produced by the prosecution in light of case law mentioned above. The appellant has not adduced defence evidence in nature of plea of alibi that he was not present in his house on the date and time of incident. Therefore, the fact of non production of any independent witness of locality of place of occurrence does not affect the prosecution adversely. Argument of learned Amicus-curiae in this regard is of no avail to extend benefit to the appellant.
45. Last argument of learned Amicus-curiae was put forth by indicating that the learned trial court has mentioned in the judgment that no Forensic Expert report is available on record regarding blood stained clothes of the victim. It is pointed out that medical analysis report dated 19.12.2009 sent by the Joint Director, Forensic Laboratory, Mahanagar, Lucknow is available on record, which was not perused by the learned trial court. This argument is also of no avail for the appellant.
46. I have perused this report.
47. PW-7, the Investigating Officer has proved this fact that these clothes of the victim were sent through the Presiding Officer of the Court of A.C.J.M.-17 and it is mentioned in this report that her Salwar and Samij were sent on 06.11.2009 through special messenger. Crime No.1587 of 2009; State vs. Jagdish Kori, under Sections 376 and 506 I.P.C., Police Station-Haidargarh, District-Barabanki is also mentioned on it. The concerned Forensic Expert has used spectrum examination of Salwar and Samij of the victim and he found human blood on these clothes, which were worn by the victim at the time of incident. Although it is mentioned in this report that these blood stains were disintegrated, therefore, there origin could not be ascertained and sperm were not found on these clothes.
48. PW-3- mother of the victim and PW-7 the Investigating Officer have proved that these blood stained clothes were worn by the victim at the time of incident and PW-1 Dr. Nivedita Kaur has stated that PW-3 apprised her that vagina of the victim was having bleeding after incident and blood soacked in the clothes of the victim. The arguments put-forth by the learned Amicus-curiae has no substance to help the appellant.
49. In the above mentioned facts and circumstances and on the basis of appreciation and evaluation of evidence of witnesses, the trial court has recorded findings in correct perspectives, which cannot be termed as perverse or against evidence on record or law. This appeal lacks merit, deserves to be dismissed. Inform to the trial court and the appellant accordingly.
50. The appeal is hereby dismissed. Inform to the accused-appellant through the Jail Superintendent concerned along with copy of this judgment. Record of the trial court be also sent back to the trial court along with copy of this judgment.
Order Date :- 08.11.2017
Case :- CRIMINAL APPEAL No. 2030 of 2010
Appellant :- Jagdish Kori
Respondent :- State Of U.P.
Counsel for Appellant :- Jail Appeal,Nisha Srivastava
Counsel for Respondent :- Govt. Advocate,Raghvendra Singh
Hon’ble Virendra Kumar-II,J.
1. Heard Smt. Nisha Srivastava, learned Amicus Curiae for appellant and Mr. Anurag Verma, learned Additional Government Advocate for the State.
2. The Section has reported that this appeal has been filed beyond limitation and is barred by time for 13 days.
3. On due consideration, the delay in filing this appeal is hereby condoned.
Order Date :- 08.11.2017