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Raju vs State Of U.P. on 9 February, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 62 AFR

Reserved

Case :- CRIMINAL APPEAL No. – 4984 of 2012

Appellant :- Raju

Respondent :- State Of U.P.

Counsel for Appellant :- Pushpendra Mishra, Ashutosh, P.K. Mishra, Sanjay Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Krishna Pratap Singh,J

The present criminal appeal is directed against a judgement and order dated 7/8-12-2011 passed by the Additional Sessions Judge (Ex-Cadre), Rampur in Sessions Trial No. 202 of 2010 arising out of Case Crime No. 2056 of 2009 under Section 376 IPC, Police Station Ganj, District Rampur. By the impugned judgment and order learned Additional Sessions Judge has convicted and sentenced the accused-appellant Raju to ten years RI and a fine of Rs. 30,000/- (rupees thirty thousand) only. In case of default the appellant was further directed to undergo one year additional imprisonment.

The brief facts giving rise to the present appeal are that the written report Ext. K-1 was given by informant Shafi Ahmad, son of Ahmad Nabi on 25.11.2009 at the Police Station Ganj District Rampur at 5.30 pm. to the effect that his daughter victim (name withheld) had gone to the house of one Khalil Bhai for study. At about 4.30 PM, Mullani wife of Khalil Bhai sent the victim to a shop, which was situated in Mohalla to buy certain goods, when victim was on her way, accused-appellant met her and asked her as to where is she going. The victim replied that she is going to fetch certain article for Mullani. The accused-appellant on pretext to buy certain goods for him, took her to his house. He was alone in the house. After closing the door from inside, he committed rape on her. Victim cried, but the accused did not listen to her. After committing the rape, the accused fled away after leaving the victim outside the door. Mohammad Jaan and Farooq had seen the victim and accused-appellant coming out of the house. When the victim came back to her house, she narrated the entire story to her parents. On the basis of aforesaid report, Ext. K-1 , a Chik F.I.R. Ext. K-6 was registered at Case Crime No. 2056 of 2009 under Section 376 IPC, at Police Station Ganj, District Rampur by Head Moharrir Akhtar Ali PW-6, who had also made necessary G.D. entry vide Ext. K-7.

After the registration of the case, the law set into motion and the case was entrusted to Sub-Inspector Krishna Pal PW-7 for investigation, who inspected the spot and prepared side plan Ext. K-8. He also took into the possession the Salwar of the victim, which she was wearing at the time of incident and prepared a memo Ext. K-2. The investigating officer has recorded the statement of the victim and one Fahim. He arrested the accused-appellant on 26.11.2009 and interrogated him in the police station. After completing the investigation, the investigating officer submitted the charge-sheet against accused-appellant under Section 376 IPC, which he proved as Ext. Ka-10.

As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions. Subsequently, charge under Section 376 IPC was framed on 21.08.2010 against accused-appellant, who pleaded not guilty and claimed to be tried.

To bring home the guilt of the accused-appellant, the prosecution has examined as many as 8 witnesses, out of which Dr. Chitra Jauhari PW-3, Dr. R. K. Sharma P.W-5, H. M. Akhtar Ali PW-6, Investigating Officer Sub Inspector Krishna Pal, PW-7 and Dr. Parag Agarwal, PW-8 were formal witnesses. Informant Shafi Ahmad PW-1 is the complainant of the case, PW-2 is the victim of the case and Mohammad Jaan PW-4, who is the real brother of the complainant are the witnesses of the fact.

In his statement under Section 313 Cr.P.C. the accused-appellant had denied the entire prosecution story as also the circumstances appearing in evidence against him and he has stated that complainant had taken his rickshaw on fare and when he demanded the fare, he has falsely been implicated in this case by the complainant. However, the accused-appellant had not examined any witness in defence.

The trial Court after hearing the learned counsel for the parties and scrutinizing the evidence on record, has convicted and sentenced the accused-appellant as indicated herein above.

Heard Shri Pushpendra Mishra, learned counsel for the appellant and Shri Rizwan Siddiqui, learned Additional Government Advocate along with Mr. Vijay Kumar Mishra, learned Brief Holder for the State and gone through the record of the case.

Learned counsel for the accused-appellant contended that accused-appellant is innocent and has been falsely implicated in this case due to enmity. It was further submitted that the trial court has not appreciated the evidence available on record in correct perspective and impugned findings are based on surmises and conjunctures. It was also submitted that the trial court has illegally swayed away by the submission advanced on behalf of the prosecution.

On the other hand learned Additional Government Advocate supported the findings of the learned Trial Court and argued that the prosecution has discharged its burden by proving the case against the appellant beyond the hilt through the testimony of the informant Shafi Ahmad PW-1, victim PW-2 and Mohammad Jaan, PW-4. It has further been submitted that the accused-appellant was known to the informant and victim from before as they were the resident of same village. It was also submitted that the victim was about 11 years of age and there is no contradiction in the prosecution evidence. Their statement are fully corroborated by medical evidence. Lastly, it was submitted that the learned trial court has not committed any error in recording the findings of guilt against the accused-appellant for the offence punishable under Section 376 IPC and proper sentence has been awarded to him.

Before I proceed to analyze the evidence on record, in order to appreciate the submissions advanced by the learned counsel for the parties, it would be proper to narrate, in brief, the statements of the prosecution witnesses given during their examination-in-chief.

Shafi Ahmad PW-1 is the father of the victim and the complainant of the case. He deposed that on 25.11.2009 at about 4.30 P.M. his daughter, the victim PW-2 had gone to the house of Khalil Bhai for study. The wife of Khalil Bhai sent the victim to a shop which was situated in the Mohalla to buy certain goods. When she was on her way, accused appellant meet her and asked her as to where was she going. Victim replied that she was going to purchase certain articles from the shop. Accused-appellant on pretext to buy certain goods for him also, took her to his house and after bolting the door from inside, committed rape on her. He further deposed that Mohammad Jaan and Fahim also saw the victim and the accused coming out of the house of the accused, who brought the victim to the house. When he along with his daughter PW-2 were going to the police station, on the way, he met Gulrej and Laek from whom he got the FIR scribed, which he proved as Ext. Ka-1. He further deposed that Investigating Officer interrogated him at Police Station. On 06.12.2009, the investigating officer had recorded the statement of the victim at his house. He also proved the memo of Salwar of victim as Exhibit K-2.

P.W-2 is the victim of the case. She deposed that she knows the accused, who is present in the Court. Accused is the resident of her Mohallah and is a Rickshaw puller. On the date of incident at about 4.30 PM, she had gone to the house of Khalil Bhai for study. The wife of Khalil Bhai sent her to shop, which was situated in the Mohallah to buy certain goods. When she was on her way, accused-appellant met her and asked her as to where was she going. She replied that she was going to purchase certain goods from a shop. Accused-appellant on pretext to buy certain goods for him, took her to his house and after bolting the door from inside, committed rape on her. She shrieked, but there was no one to hear her cry. She further deposed that leaving her at his door, accused-appellant fled away from the spot. Her uncle Mohammad Jaan PW-4 and Fahim had seen her at the door of the accused-appellant and took her to her house. She had narrated the entire story to her parents. She also deposed that her father took her to the Police Station and lodged first information report. She further stated that she was medially examined in District Hospital by the Woman Medical officer. Investigating Officer had also interrogated her and took her Salwar from her father and memo Exhibit K-2 was prepared. She also proved the memo of Salwar as Ext. Ka- 2.

PW-3, Dr. Chitra Jauhari, deposed that on 25.11.2009 she was posted as Emergency Medical Officer at the District Women Hospital Rampur. On that day she had medically examined the victim, who was brought by lady Constable Vijay Laxmi. Doctor found that her height was 3 feet 2 inch, weight 30 Kgs., teeth 10/10, breast was not started developing, pubic and auxiliary hair was not present. Doctor further opined that at the time of medical examination victim was conscious, bloodstained was present around her private part and thigh. There was blood on labia. On separating the labia the hymenal opening was seen as around, admitted tip of finger. Doctor has prepared smear slide and sent it to the pathologist for presence of spermatozoa. There was a wound of 1.5 cm just below the hymen edge which was at 6.00 O’ clock position. Doctor also noted that dressing of the wound was done by her. For the purpose of determination of her age, she was advised x-ray. After the receipt of x-ray report and pathologist report, she prepared supplementary report. As per her supplementary report she opined the age of the girl below 11 years. In the pathologist report spermatozoa and RBC were also found. On the basis of pathologist report coupled with the injury on the private part of the victim, doctor opined that rape was committed with the victim. She proved her supplementary report as Ext. Ka-4.

PW- 4, Mohammad Jaan,is the real brother of the informant. He has stated in his examination-in-chief that on 25.11.2009 at about 4.30 PM, when he was returning from the house of his sister, he had seen that the accused-appellant was dragging out the victim from his house. After dragging out the victim from his house accused-appellant locked his house and fled away from the spot. He further deposed that victim had told him that accused-appellant had committed rape on her. He also saw the bloodstained on her Salwar. Victim had narrated the entire story to her mother. He has also proved the memo of Salwar as Ext. K-2.

Dr. R.K. Sharma PW-5 has deposed that on 26.11.2009, he was posted as Senior Consultant at the District Hospital. On that date he has conducted the x-ray of the victim on the reference made by Emergency Medical Officer, District Women Hospital for ascertaining her age. He has proved the x-ray reports as Exts. Ka-5 and Ka-6.

Head Muharrir, Akhtar Ali, PW-6 has deposed that on 25.11.2009, he was posted as Head Muharrir at the police station Ganj. On the basis of the written report handed over by the complainant, Shafi Ahmad, he has entered the same in the GD at 5.30 PM on 25.11.2009 and prepared Chik FIR No. 332 of 2009 at case crime No. 2056 of 2009, which he proved as Ext. Ka-6.

SI Krishna Pal PW-7 was the investigating officer of the case, who conducted the investigation and submitted the charge sheet. His evidence has already been discussed above.

Dr. Parag Agrawal, PW-8 has stated that on 27.11.2009 he was posted as Pathologist in District Hospital, Rampur. He had examined the vaginal smear of the victim. In her vaginal smear certain dead spermatozoa was found. He has proved vaginal smear examination report at Exhibit Ka-2.

I find, that there is no delay in lodging the F.I.R. in the present case. The incident of this case is alleged to have taken place on 25.11.2009 at about 4.30 PM and F.I.R. of this case was lodged on same day at about 5.30 PM after one hour of the incident. According to the Chik report, Ext. K-6 the distance of the village Gherbaj Khan from the police station was only ½ km. to the east and south. In a catena of decisions Hon’ble Apex Court has held that promptness in lodging the F.I.R. gives assurance of veracity of the witnesses and reflects first hand account of occurrence and the person responsible therefor. Object to insist upon early F.I.R. is to obtain information regarding the circumstances in which the crime was committed, name of the actual culprit, parts played by him as well as the names of the eye witnesses. In this present case F.I.R. has been lodged and specific allegations of rape has been assigned to the accused-appellant Raju.

The next question which requires the attention of the Court is as to the age of the victim on the date of incident. The informant Shafi Ahmad has not stated the age of the victim. Victim PW-2 in her statement on oath deposed that she was about 11 years of age. According to the statement of Dr. Chitra Jauhri, PW-3 and medical report Exhibit Ka-4 victim was below 11 years of age. So the evidence available on record shows that at the time of incident the victim PW-2 was below 11 years of age and the defence could not elicit anything from the cross-examination of the aforesaid witnesses.

In view of the above, I am of the opinion that the victim was below 11 years of age on the date of incident and learned Trial Court has not erred in calculating the age of victim.

In order to prove the charges levelled against the accused-appellant only the testimony of the victim is on record. Her father, the informant Shafi Ahmad PW-1 and Mohammad Jaan PW-4 are not the eye witnesses of the incident.

In her statement the victim has categorically stated the manner in which she was taken by the accused appellant to his house and how he had ravished her in his house. Her statement is reliable and credible and there is no ground to discard her evidence. So, in this case I find that not only the victim but also the medical report have fully supported the prosecution case. Further the case of the prosecution finds support from the report of Chemical Examiner, Ext. K-9, who found the human blood and human semen on the Salwar of the victim, which the victim was wearing at the time when rape was committed on her. Mohammad Jaan, PW-4 in his deposition has stated that when he saw the victim at the door of the accused-appellant, he found that Salwar of the victim was bloodstained. According to the Pathological report Ext Ka-11, few dead Spermatozoa were seen in the vaginal smear of the victim, which also support the prosecution case. The learned trial court has rightly relied upon the evidence adduced by the prosecution to convict the accused appellant.

In case of Aman Kumar and another Vs. State of Haryana, 2004 (50 ) ACC 35 (SC), Hon’ble Apex Court has held as under:

“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 suffice.”

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.”

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 molestation.

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 probability of the defence case is concerned it is unbelievable that any father would lodge a false first information report involving her daughter, who was below 11 years of age at the time of incident because such allegations may destroy her future life. Accused-appellant has come out with an absurd defence of money dispute regarding rent of rickshaw, but no specific enmity and rent dispute could be brought to the notice of the court to show such defence of false implication. Therefore, the defence of false implication has no substance. Prosecution has proved its case beyond reasonable doubt that accused-appellant is the person, who had committed rape on victim PW-2. The evidence of prosecution witnesses is consistent with the surrounding circumstances and the probabilities of the case and is also supported by the medical evidence as well as the report of the Forensic Science Laboratory.

In this case I find that a heinous crime has been committed with a tender age girl below 11 years 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 08.12.2011 passed by the Additional Sessions Judge (Ex-cadre) Rampur in ST No. 202 of 2010, 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.

Office is directed to send a copy of this order to the learned Sessions Judge, Rampur for information and compliance.

Dated: 09.2.2018

Pr/-

 

 

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