Taukir And Another vs State Of U.P. on 2 February, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Case :- CRIMINAL APPEAL No. – 3760 of 2008

Appellant :- Taukir And Another

Respondent :- State Of U.P.

Counsel for Appellant :- Gaurav Kakkar, D.R. Choudhary, Devendra Singh, G.S, Hajela, Irfan Ahmad Malik, Sunil Dubey, V. S.Mishra, Viresh Misra

Counsel for Respondent :- Govt. Advocate, Atul Kumar

Hon’ble Krishna Pratap Singh,J.

This criminal appeal has been filed against a judgement and order dated 09.5.2008 passed by the Additional Sessions Judge, Court No. 3, Saharanpur in ST No. 405 of 2007 arising out of case crime No. 163 of 2007 whereby the appellants have been convicted and sentenced to ten years RI under section 376(2)(g) IPC and a fine of Rs. 2000/- each and in default of payment of fine the appellants were directed to further undergo six months simple imprisonment. The appellants were further convicted and sentenced to six month imprisonment under section 323 IPC.

The facts as unfolded by the prosecution, in brief, are that a written report Ext. Ka-1 was handed over by the complainant of the case Shamshad, son of Shabbir, resident of village Hoaz Khedi at the police station Kotwali Dehat, Saharanpur on 15.3.2007 at 12.30 P.M., to the effect that his minor niece (name withheld) (hereinafter referred to as the victim) and his wife Mursida were at home whereas mother of the victim had gone to her Maika. On being asked by Makhruda, the neighbour that her mother had called her on telephone, the victim after taking permission from Mursida, her aunt, had gone to talk to her mother on telephone. When the victim did not return for 30 minutes, the complainant went to the house of Makhruda and enquired about the victim. On being told by Makhruda that the victim after talking on telephone went away some time back, the complainant along with other family members started searching the victim, but in vain. On 12.3.2007, when they were searching the victim and talking loudly in the sugarcane field and as soon as they reached at the sugarcane field of Tajmul, the Pradhan, the victim in an unconscious state came and started weeping. The complainant brought the victim home. Several persons were also there along with the complainant. On enquiry, the victim told him the sensational story. The victim told the complainant that Taukir, son of Irfan and Wasim, son of Munfait committed rape on her throughout the night one by one and have also beaten her. It is further mentioned in the report that on account of pressure of responsible persons, compromise was going on as the matter involves his reputation, but as the compromise could not be arrived at, he has lodged the report and prayed for necessary action in the matter.

On the basis of the aforesaid report a case was registered at case crime No. 163 of 2007, under sections 376/323/506 IPC, police station Kotwali Dehat, Saharanpur by PW-5 Head Muharrir Sunil Kumar (Ext. Ka-5), which was entered into GD vide Ext. Ka-6.

After the registration of the first information report, the law set into motion and investigation of the case was entrusted to PW-6 SI Itwari Lal, who recorded the statements of the complainant and the victim and inspected the spot of occurrence on the pointing out of the complainant and prepared site plan, which he proved as Ext. Ka-7. On 22.3.2007 he got the medical examination of the victim conducted. Thereafter this witness has proceeded on leave and remaining investigation of the case was conducted by PW-7 SI Munna Singh, who after completing the remaining investigation submitted the charge sheet against the appellants under section 376/323/506 IPC, which he proved as Ext. Ka-8.

As the case was exclusively triable by the court of sessions, the learned Magistrate committed the case to the court of sessions. Learned Additional Sessions Judge, Court No. 3, Saharanpur vide order dated 12.7.2007 framed the charges against the accused-appellants under section 376(2)(g) and 323 IPC.

To bring home the guilt of the appellants, the prosecution has examined as many as eight witnesses.

PW 1 is the victim and star witness of the case. She deposed that on the date of incident Maksuda alias Makruda came to her house and asked that telephone of her mother had come and asked her to talk. Her mother had gone to her home (Maika). Her aunt was present at the house and on the direction of her aunt she had gone to talk to her mother on telephone. Accused-appellants Taukir and Wasim met her in front of the door of Wasim. Maksuda asked the accused that she has done the work and take away the victim wherever they wish. Thereafter accused-appellant Wasim has caught hold of her, whereas accused-appellant Taukir stuffed her mouth and took her to the sugarcane field of Tajmul Pradhan. In the way no one met. In the field they unclothed her and committed rape on her and also beaten her. Taukir has committed rape on her firstly and thereafter Wasim committed rape. They committed rape on her once in the night and once in the next morning. Taukir was having revolver from which he has threatened her. She further deposed that her statement was also got recorded by the police in the Court.

PW-2, Shamshad is the complainant of the case and uncle of the victim. He deposed that at the time of incident, he was not present at the house. When he reached the house at about 9.30-9.45 PM, he was told by her wife that the victim was taken away by Maksuda by saying that her mother had telephoned her. When he went to the house of Maksuda, she told him that she has left her house. Thereafter he started searching his niece. On the next day at 2.00 PM while he was searching his niece, he reached near the sugarcane field of Tajmul Hasan along with Murtaza, Nazim, Muntazir, Yusuf and several other persons of the village. At that time he heard the shriek from the sugarcane field. When he went there, the victim came running to him. She was very much fearful and was weeping. She told him that both the accused-appellants Taukir and Wasim committed rape on her. He also deposed that accused along with others have also threatened him of dire consequences in case he reports the matter to the police. He proved his report as Ext. Ka-1.

PW-3 is Dr. Alka Dixit. She deposed that on 15.3.2007 she was posted as Medical Officer at the District Women Hospital, Saharanpur. On that date at about 3.00 PM she has medically examined the victim, who was brought by woman constable Smt. Taresh Sharma of Police Station Kotwali Dehat, Saharanpur. On examination she found that that her secondary sexual character was fully developed. She was of average build. There was swelling on her left hand and right leg for which she was referred to SBD Hospital. On internal examination, Dr. Dixit found that there was no injury on outer side of the private part. However, doctor further noted that hymen was torn. Vagina admits one finger easily. Doctor Dixit further deposed that Vaginal smear was taken and sent to the Pathologist and for ascertaining her age, she was referred for x-ray.

After receipt of x-ray and pathologist report, Doctor Alka Dixit has prepared supplementary report (Ext. Ka-3), whereby she opined that as the smear report was positive, which suggests that rape might have been committed on the victim. On the basis of x-ray report, in the opinion of the doctor, the age of the victim was found 17-18 years.

PW-4, Doctor Chandra Shekar has deposed that on 15.3.2007 he was posted at SBD Hospital, Saharanpur. On that date he has medically examined the victim and found the following injuries on her person:

(I) A traumatic swelling on the dorsum of the left hand 7.00 cm c 6.00 cm in size with a traumatic green contusion on the dorsum of hand in the middle 4.00 cm x 1.00 cm. Injuries kept under observation. X-ray of left hand advised.

(II) Reddish contusion front of left leg in the mid region 3.00 cm x 2.00 cm.

(III) A brownish contusion on back of right forearm 4.00 cm x 0.8 cm in size. 5.00 cm below elbow.

(IV) A brownish green contusion on outer aspect of left upper arms 6.5 cm x 0.9 cm in size just above left elbow.

(V) A traumatic swelling on dorsum of right foot 5.00 cm x 5.00 cm in size.

Complain of pain right side back of shoulder and right thigh, but no mark of injury seen.

In the opinion of the doctor injury No. 1 was kept under observation. Injuries No. 2 to 5 were simple and caused by hard and blunt object. Duration of the injury was one week.

Evidence of PW-5 Head Muharrir, Sunil Kumar, PW-6, SI Itwari Lal, the first investigating officer, PW-7, SI Munna Singh, the second investigating officer has already been discussed above.

PW-8, Shri Laxman Singh has deposed that he is posted as Head Master in the primary school, Khedi, Saharanpur. He has produced the scholar register to show that the victim was a student of his school and as per scholar register her date of birth is 18.7.1992.

After the closure of the prosecution evidence, the statements of the accused-appellants under Section 313 Cr.P.C. was recorded, in which they denied the charges and stated that they have been falsely implicated in this case due to village party bandi and they produced two defence witnesses in support of their case.

DW-1, Shri Ravi Prakash is the Assistant (Husbandary) Inspector, AHI, Company Bagh, Saharanpur. He deposed that on 11.3.2007 in Company Bagh there was a mild rain in the night and on 12.3.2007, the weather was cloudy in the night and there was mild rain the morning. He deposed this fact on the basis of a register maintained by the Company Bagh, Saharanpur. However, he further deposed that it is not necessary that there was rain in other parts of Saharanpur.

DW-2, Gufran has deposed that there was a heavy rain on 11.3.2007 after sun set and there was heavy water logging in the sugarcane field of Tajmul Hasan.

Learned Additional Sessions Judge, Court No. 3, Saharanpur, after hearing the learned counsel for the parties and after scrutinizing the evidence on record, convicted and sentenced the appellants as stated in the first paragraph of the judgement.

Heard Shri Pawan Kumar, holding brief of Shri Irfan Ahmad Malik and Shri Sunil Dubey, learned counsel for the appellants and learned Additional Government Advocate and perused the record of the case.

Shri Atul Kumar, learned counsel for the complainant did not turn up to oppose the appeal.

Learned counsel for the appellants has argued that there was delay in lodging the first information report for which no plausible explanation has been given by the prosecution. Learned counsel for the appellants further argued that the appellants are innocent and have falsely been implicated due to village party bandi. Learned counsel also argued that learned Trial Court has not appreciated the evidence on record in correct perspective and has convicted the appellants on the basis of conjectures and surmises.

On the other hand learned Additional Government Advocate supported the findings of the learned Trial Court and argued that the judgement is well reasoned and calls for no interference by this Court.

So far as first contention of the learned counsel for the appellants that the FIR has been lodged with inordinate delay for which no plausible explanation has been given, is concerned, I find that the first informant while lodging the report has stated that after the recovery of the victim on 12.3.2007, on the intervention of some influential and responsible persons of the locality, compromise was going on as the matter involves his reputation, but when the compromise could not be arrived at, only then he lodged the FIR. It has also been stated by the first informant that Panchayat was also held in the village. One Salim has attended the Panchayat on behalf of the accused, who has asked him not to lodge the FIR. The victim in her evidence on oath has stated that the accused-appellants were roaming outside her house and did not allow her family members to go outside to lodge the report.

So, in my opinion, the delay in lodging the FIR has very well explained by the prosecution. Further in a case under section 376 IPC, the delay, if explained properly, is not fatal to the prosecution case.

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 Tara Singh and others Vs. State of Punjab, AIR 1991 SC 63, Hon’ble Supreme Court held that mere delay in lodging the FIR by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright.

The Court further held thus:

” 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.”

In Zahoor and others Vs. State of U.P., AIR 1991 SC 40, Hon’ble Supreme Court held that mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication.

Hon’ble Supreme Court in State of Punjab Vs. Gurmit Singh and others, 1996 SCC (2) 384 Hon’ble Supreme Court held as under:

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.

Therefore, I am of the opinion that the delay in lodging the first information report has properly been explained by the prosecution.

Now coming to the next contention of the learned counsel for the applicant that the appellants have been falsely been implicated in this case due to village Party Bandi.

In support of the case of false implication of the appellants, learned counsel for the accused-appellants has produced two defence witnesses namely Ravi Prakash, Assistant Husbandry Inspector, Company Bagh, Saharanpur and Gufran. However, both of them have only deposed that on the date of incident, i.e. 11.3.2007 and 12.3.2007 there was rain in the Saharanpur and in the field where the rape was alleged to have been committed, there was water logging and it was not possible for the accused-appellants to commit rape in that field logged with water.

It is strange to note that in their statements both the accused-appellants have stated that they have been falsely implicated, but instead of producing any witness to support their case in respect of enmity and false implication, they have produced the witnesses to show that there was heavy rain in the vicinity.

However, learned Trial Court after considering the evidence on record, rejected the defence given by the accused.

In Indian Society no father will make such a false allegation ruining the future life of his minor daughter, because such allegation is destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, but a rapist degrades the very soul of the helpless female.

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 this case a minor girl (17-18 years as per the medical report and 15 years as per the scholar register) had been ravished by two accused persons, who must have undergone a traumatic experience.

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.”

In the case in hand, I find that the evidence of the prosecutrix is consistent. She has stated that the accused took her to the sugarcane field and after unclothing her, committed rape on her and also beaten her. Taukir has committed rape on her firstly and thereafter Wasim committed rape. They committed rape on her once in the night and once in the next morning. Taukir was having revolver from which he has threatened her. The victim was put to lengthy cross-examination, but nothing adverse could be elicited from her mouth so as to make the prosecution story doubtful. I find no reason to disbelieve the evidence of the prosecutrix.

In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753, Hon’ble Supreme Court held thus:

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 focused 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 mileu, 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 turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile.”

Hon’ble Supreme Court in State Of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 AIR 658, 1990 SCR (1) 115 held thus:

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

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 dehumanizing 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 context it will be useful to quote the following passage from the 84th Report of the Law Commission of India:

” It is often stated that a woman who is raped undergoes two crises- the rape and the subsequent trial. While the first seriously wounds her dignity, curbs her individual, destroys her sense of security and may often ruin her physically, the second is no less potent of mischief inasmuch as it not only force her to re-live through the traumatic experience, but also does so in the glare of publicity in a totally alien atmosphere, with the whole apparatus and paraphernalia of the criminal justice system focused upon her.

In particular, it is not well established that sexual activities with your girls of immature age have a traumatic effect which often persists through life, leading subsequently to disorder, unless there are counter-balancing factors in family life and in social attitudes which could act as a cushion against such traumatic effects.

Rape is the ultimate violation of the self. It is a humiliating event in a woman’s life which leads to fear for existence and a sense of powerlessness. The victim needs empathy and safety and a sense of re-assurance. In the absence of public sensitivity to these needs, the experience of figuring in a report of the offence may itself become another assault. Forcible rape is unique among crimes, in the manner in which its victims are dealt with by the criminal justice system. Raped women have to undergo certain tribulations. These begin with their treatment by the police and continue through a male dominated criminal justice system. Acquittal of many of facto guilty rapists adds to the sense of injustice.

In effect, the focus of the law upon corroboration, consent and character of the prosecutrix and a standard of proof of guilt going beyond reasonable doubt have resulted in an increasing alienation of the general public from the legal system, who find the law and legal language difficult to understand and who think that the courts are not run so well as one would expect.”

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

“JUSTICE DEMANDS, THE COURT AWARDS”

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.

In this case a heinous crime has been committed and the accused must suffer for his 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 minor girl aged 17 years had been ravished by the two accused, who must have undergone a 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 09.5.2008 passed by the Additional Sessions Judge, Court No. 3, Saharanpur in ST No. 405 of 2007, which has been sought to be assailed, calls for no interference.

Accordingly, the appeal is dismissed.

The appellants are in jail. They shall remain in jail to serve out the remaining sentence awarded by the Trial Court. However, while deciding the period of sentence the authorities will take into consideration the remission of sentence which the accused-appellants are entitled to in law.

Office is directed to send a certified copy of this judgement to the learned Sessions Judge, Saharanpur for compliance and compliance report be positively submitted to this court within eight weeks.

Dated: 02.02.2018

Ishrat

 

 

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