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Javed vs State Of U.P. on 15 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. – 12

Case :- CRIMINAL APPEAL No. – 2455 of 2013

Appellant :- Javed

Respondent :- State Of U.P.

Counsel for Appellant :- M.A. Khan,Rajeev Sawhney

Counsel for Respondent :- Govt. Advocate

Hon’ble Krishna Pratap Singh,J.

This Criminal appeal has been filed against a judgement and order dated 04.04.2013 passed by the Additional District and Sessions Judge, Court No. 9, Bijnor in ST No. 605 of 2012 arising out of case crime No. 338 of 2012, police station Syohara, district Bijnor. By the impugned order the learned Additional Sessions Judge has convicted and sentenced the appellant Javed to seven years rigorous imprisonment and a fine of Rs. 10,000/- (rupees ten thousand) under section 376 IPC. In default of payment of fine, the appellant was further directed to undergo two months additional simple imprisonment.

The brief facts giving rise to the present appeal are that a typed report was given by the complainant Riyaz Uddin, son of Khalil Ahmad, resident of village Mukarpuri, Jyothimma on 15.7.2012 at the police station Syohara, district Bijnor to the effect that his wife Rukhsana has plucked his mobile for the purpose of charging in the circuit of electricity connection in the house of Javed. On 13.7.2012, his wife sent his minor daughter, the prosecutrix (hereinafter referred to as the victim) aged about 13 years to the house of Javed. In the room, Javed, son of Akbar was sitting. As soon as the victim entered the room, Javed bolted the door from inside and committed rape on her. His wife kept on waiting for the victim for about 20 minutes and when the victim did not return, she went to the house of Javed and found the door bolted from inside. On knocking the door, Javed did not open the door. Thereafter his wife went there along with Naem, son of Ali Hasan, thereafter the door was got opened. When the complainant’s wife and Naem went inside, they found that hands and feet of the victim were tied. Taking advantage of the situation, Javed run away from the spot. It is further alleged in the report that the complainant was at Panipat, his wife has given information to him on telephone and thereafter he came back and lodged the first information report.

On the basis of the aforesaid report, Ext. Ka-1, a Chik FIR, Ext. Ka-8 was registered at case crime No. 338 of 2012, under section 376 IPC at police station Syohara, district Bijnor by Constable Clerk Omkar Singh, who also made necessary GD entry vide Ext. Ka-9.

After the registration of the case, the case was entrusted to SI Ram Kumar Balyan, PW 5, who inspected the spot and prepared site plan, Ext. Ka 5. He also took into possession the clothes which the victim was wearing at time of incident and prepared its memo, Ext. Ka-6. On 19.7.2012, he received x-ray report, pathological report and supplementary report, which he entered into CD . On 23.7.2012, he got the statement of the victim recorded under Section 164 Cr.P.C. He arrested the accused on 24.7.2012 and recorded his statement under Section 161 Cr.P.C. After culmination of investigation, the investigating officer submitted the charge sheet against the accused under section 376 IPC, which he proved as Ext. Ka-7.

As the case was exclusively triable by the court of sessions, the learned Magistrate committed the case to the court of sessions.

To bring home the guilt of the appellant, the prosecution has examined as many as five witnesses, out of which two witnesses PW 3, Dr. Savita Gupta and PW 5, SI Ram Kumar Balyan were the formal witnesses. PW 1, Riyaz Uddin is the complainant of the case. PW 2 is the victim of the case and PW 4 Naem is the eyewitness of the case.

PW 1, Riyazuddin, is the father of the victim and complainant of the case. He reiterated the versions given in the FIR. He further deposed that he works in Panipat for the last 7-8 years. He was informed about the incident on telephone by his wife. He stated that his daughter is illiterate. He also deposed that on the date of incident, he was not present in village.

PW 2 is the victim of the case. She deposed that she knows the accused, who is present in the Court. He is her neighbour. Her mother had plucked her mobile for the purpose of charging in the house of the accused Javed. When she had gone there to fetch the mobile, Javed was present in the room. As soon as she took the mobile, Javed pressed her mouth with his hand. When she tried to resist, the accused tied her hand and feet and after getting her undressed, got her laid on the wooden bed. He also undressed himself and committed rape with her twice forcibly. She further deposed that when her mother came there, he did not open the door. Thereafter when her mother came along with Naem, he opened the door and fled away. Blood was oozing from her vagina and she was feeling pain.

PW 3, Dr. Savita Gupta has deposed that on 16.7.2012 she was posted as Medical Officer, District Women Hospital, Bijnor. On that date she has medically examined the victim, who was brought by a lady constable Rajni. There was no external injury on the person of the victim. Her teeth was 14/14. Her vagina admits two finger easily. Her hymen was old torn. For the purpose of ascertaining her age, she was advised x-ray and for the report of spermatozoa, the victim was referred to pathologist. After the receipt of the x-ray report and pathologist report, she prepared supplementary report. She proved her report as Ext. Ka-3 and supplementary report as Ext. Ka-4.

In the opinion of the doctor, the victim was aged about 18 years. No definite opinion about rape was given by the doctor.

PW-4, Naem deposed that he knows the accused Javed. On 13.7. 2017, Smt. Rukhsana came to call him and said that her daughter had gone to Javed house to fetch mobile and when she went there, the door was bolted from inside. Javed has confined her daughter and requested him to accompany her. When he went to the house of accused Javed along with Rukhsana and knocked the door, thereafter accused Javed fled away after opening the door. When he rushed inside, he saw that hand and feet of the victim was tied and her Salwar was bloodstained. Javed had committed rape with the victim forcibly. The victim narrated the incident to him as well as to her mother.

PW 5, SI Ram Kumar Balyan is the investigating officer of the case, who conducted the investigation and submitted the charge sheet. His evidence has already been discussed above.

After the closure of the prosecution evidence, the statement of the accused-appellant under Section 313 Cr.P.C. was recorded, in which he denied the charges and stated that he has been falsely implicated in this case. He produced two witnesses in defence.

DW-1 Daljit Singh has deposed that his house is situated in front of the house of Javed. On 13.7.2012 it was Friday and he was at home as he did not get job on that day. He was at home throughout the day. Neither any rape was committed with the victim nor anyone has knocked the door of Javed. This witness further deposed that Javed’s father Akbar had contested election against Hasan Ali and due to that election both sides were harbouring enmity. Before the incident, father of Javed left for heavenly abode. After the death of his father, Javed jumped into politics. In order to malign the image of Javed, the complainant had lodged a false case against him.

DW-2 Mohammad Shariq is the nephew of the accused-appellant Javed. He deposed more or less the same facts as stated by DW-1 Daljit Singh to the effect that the accused appellant has falsely been implicated due to election animosity.

Learned Additional District and Sessions Judge, Court No. 9, Bijnor after hearing the learned counsel for the parties and after scrutinizing the evidence on record, convicted and sentenced the appellant as stated in the first paragraph of the judgement.

Heard Shri Rajeev Sawhney, learned counsel for the appellant and learned Additional Government Advocate representing the State and perused the record of the case.

Learned counsel for the accused-appellant contended that the appellant has falsely been implicated in this case due to election enmity and actually no such incident took place as alleged in the FIR. In support of his case for false implication due to election enmity, learned counsel for the appellant has produced Daljit Singh, DW-1 and Mohammad Shariq, DW-2.

DW-1, Daljit Singh has stated that his house is situated in front of the house of Javed. On 13.7.2012 it was Friday and he was at home as he did not get job on that day. He was at home throughout the day. Neither any rape was committed with the victim nor anyone has knocked the door of Javed. This witness further deposed that Javed’s father Akbar had contested election against Hasan Ali and due to that election both sides were harbouring enmity. Before the incident father of Javed left for heavenly abode. After the death of his father, Javed jumped into politics. In order to malign the image of Javed, the complainant had lodged a false case against him.

However, on cross-examination he has stated that the seat of Pradhan is reserved for Schedule caste candidates and presently Shri Vijay Pal is Gram Pradhan for the last three years. Against Vijay Pal, Shri Foke Naresh, Naubhar Singh contested the election. On further cross-examination, this witness further stated that rape was not committed in his presence. He also stated that he did not know as to whether rape was committed by Javed or not.

DW-2 Mohammad Shariq has deposed that he is the nephew of accused-Javed. On 13.7.2012 no rape was committed with the victim. Father of Javed, Akbar contested the election against Hasan Ali and due to that, both sides were having enmity. After the death of Akbar, Javed jumped into politics. Due to this, Javed has falsely been implicated.

However, on cross-examination, he stated that accused-appellant is his uncle. He further stated that Hasan Ali contested the election against Akbar, father of Javed, but he could not recollect as to when they fought the election.

In India, election is held in every five years. DW-1 Daljit Singh has deposed that at present Shri Vijay Pal is the Gram Pradhan and he is holding the post for the last three years. Further the seat is reserved for schedule caste candidates and both appellant and the complainant are Muslim, meaning thereby that they had nothing to do with the election. It appears from the deposition of defence witnesses that both Akbar and Hasan Ali contested the election, which took place in 2005.

The contention of the learned counsel for the appellant that the appellant has falsely been implicated in this case is too hard to swallow as complainant in his evidence on oath has stated that he is living in Panipat in connection with his job for the last 7-8 years, it is unlikely that a person, who is living in Panipat will come back and jumped into fray of decade old enmity of Akbar with Hasan Ali, to which he was not a party by putting the honour, self esteemed, dignity, future life and social status of his daughter at stake by make such an allegation of rape.

Hon’ble Supreme Court in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, has held that the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.”

In State of U.P. Vs. Kishan Chand and others, (2004 ) 7 SCC 629, Hon’ble Supreme Court observed :

“The submission of the counsel for the accused that the testimony of PWs cannot be acted upon as they are interested witnesses is to be noted only to be rejected. By now, it is well-settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the given facts of the present case, they are but natural witnesses. We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished.”

Victim was put to lengthy cross-examination, but nothing could be elicited from her mouth so as to make her evidence untrustworthy. There is a complete consistency and coherence in her examination-in-chief and cross-examination.

In Madan Gopal Kakkad vs Naval Dubey And another, 1992 SCR (2) 921, Hon’ble Supreme Court held:

Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.

We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.

Dealing with the offence of rape and its traumatic effect on victim of rape, Hon’ble Supreme Court in the case of State of Punjab Vs. Gurmit Singh, AIR 1996 SC 1393, Hon’ble Apex Court observed as under:

“Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers 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 look 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 cases involving sexual molestations.

There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

So far as the next contention of the learned counsel for the accused-appellant that there was delay in lodging the FIR is concerned, I am not in agreement with the learned counsel for the appellant.

The complainant in the FIR as well as in his examination-in-chief has stated that he lives in Panipat to earn his livelihood. After the incident his wife has given him information on phone. Thereafter he rushed to Bijnor and lodged the FIR.

Hon’ble Supreme Court in the case of Ram Naresh and others Vs. State of Chhatisgarh, AIR 2012, SC 1357, has held that the delay, if any, in lodging the FIR, if explained properly, is in no way fatal to the case of the prosecution.

In the case of State of Karnataka Vs. Krishnappa 2000 (2) SCALE 610, Hon’ble Supreme Court pointed out that rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity. The Court held thus:

“The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status. religion race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achived by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.”

Hon’ble Supreme Court in State of A.P. Vs. Bodem Sundara Rao, 1995 (6) SCC 230 has cautioned the Courts while dealing with the cases of sexual crime against women in the following words:

“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 the cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.”

In this case, I find that not only the victim, but also the witnesses have fully supported the prosecution case. Further the case of the prosecution finds support from the report of the Chemical Examiner, who found the human blood and spermatozoa on the Salwar of the victim, which the victim was wearing at the time when the rape was committed with her. PW-4, Naem in his deposition has stated that when he entered the room, he found that Salwar of the victim was bloodstained.

In this case a heinous crime has been committed and the accused must suffer for its consequences. A rapist not only violates the victim personal integrity, but leaves indelible marks on the very soul of the helpless female. In this case a helpless girl had been ravished by the accused, who must have undergone an traumatic experience. As a matter of fact the crime is not only against the victim, it is against the whole society as well.

In view of the above discussion, I am of the view that the prosecution has fully established its case beyond reasonable doubt. The impugned judgement and order of conviction and sentence dated 04.04.2013 passed by the Additional District and Sessions Judge, Court No. 9, Bijnor in ST No. 605 of 2012, which has been sought to be assailed, calls for no interference.

Accordingly, the appeal is dismissed.

The appellant is in jail. He shall remain in jail to serve out the remaining sentence awarded by the Trial Court. While deciding the period of sentence the authorities will take into consideration the remission of sentence which the accused-appellant is entitled to in law.

Office is directed to send two certified copies of this judgement to the court concerned for record. Learned Trial Court would send one copy of the judgement to the Superintendent of Jail concerned for conveying the result of the appeal to the accused-appellant and also apprise him of his legal remedy against this judgement.

Compliance report be positively submitted to this court within eight weeks.

Order Date :- 15.12.2017/Ishrat

 

 

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