HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 47
Case :- JAIL APPEAL No. – 3338 of 2009
Appellant :- Wakil Ahmad
Respondent :- State
Counsel for Appellant :- From Jail
Counsel for Respondent :- A.G.A.
Hon’ble Arvind Kumar Mishra-I,J.
Hon’ble Saral Srivastava, J.
Heard Ms. Seema Pandey, learned amicus curiae for the appellant, Sri Rajiv Sharma, learned AGA assisted by Sri Rajiv Mishra, learned AGA for the State and perused the record of this Jail Appeal.
By way of instant Jail Appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 18.03.2009 passed by Additional Sessions Judge, court no.4, Bijnor, in Sessions Trial Nos.858 of 2008, State Vs. Wakil Ahmad, arising out of Case Crime Nos.1456 of 2008, under Section 376 IPC, Police Station- Kotwali Shahar, District- Bijnor, whereby the accused-appellant- has been sentenced to undergo life imprisonment coupled with fine Rs.20,000/- for offence under Section 376 IPC and in default of payment of aforesaid fine, he will have to undergo additional rigorous imprisonment for one year.
Factual matrix, as discernible from record appears to be that a written report was lodged at police station- Kotwali Shahr- on 15.07.2008 at 10.05 a.m. by Smt. Shamima w/o Wakil Ahmad (accused in this case) r/o Hamidpur, Police Station- Kotwali Shahr, District Bijnor regarding commission of rape committed by the accused on his own daughter with allegations, inter alia, that the informant has three daughters and one son. Her elder daughter is the victim, aged about 13-14 years and she is minor. The father of victim (Wakil Ahmad) used to take her to forest for collecting woods and used to commit rape on her there. This continued for quite long time and on resistance being offered by the victim, she was threatened by him. The episode came to the knowledge of the informant and the people of the locality when victim became pregnant with she developed symptoms of pregnancy. The informant inquired with the victim about the actual fact/incident, whereupon, she disclosed everything to her (informant), that her father has committed rape on her and has threatened that in case, she discloses this facts anyone, she will be killed. The incident was brought to the knowledge of the Village Pradhan, whereupon, Village Pradhan and the informant were also threatened by the accused- appellant. The written report is Exhibit Ka-1.
Entry of contents of written report was noted in the concerned check F.I.R. at 10.05 A.M. on 15.7.2008 at Case Crime No.1456 of 2008, u/s 376, 506 I.P.C., Police Station- Kotwali Shahr, District- Bijnor, which is Ex.Ka.3. Relevant entries were made in the concerned G.D. at serial no.31 at 10.05 A.M. on 15.07.2008 and a case was registered against accused, which is Exhibit Ka-4.
The investigation ensued, and the same was initially conducted by Subodh Kumar Saxena (P.W.5), who after recording the relevant entries in the concerned General Diary prepared memo of clothes of the victim, Exhibit Ka-2 and also recorded statement of the witnesses and ensured recording of statement of the victim under Section 164 Cr.P.C.
Record reflects that the victim was medically examined by Dr. Savita Gupta P.W.4 on 24.07.2008 at Women Hospital, Bijnor, wherein, she noted following internal examination (Exhibit Ka-5):-
Internal Examination- Vagina opening admits two finger, hymen torn old healed, no bleeding, no congestion, vaginal smear prepared, Patient give H/o 5 months menstrual. Per abdomen exc. at size 20 wps- 22 wps.
Age of the victim was assessed to be 17 years. The said report has been proved by Dr. Savita Gupta P.W.4, which is Exhibit Ka-6 on the record.
In the course of invesigation he also visited to the spot and prepared the site plan, Exhibit Ka-7. Thereafter, after completing the investigation, he filed the charge- sheet (Charge- sheet No.290 of 2008) against the accused under Sections 376, 506 IPC, which is Exhibit Ka-8.
Pursuant to the filing of the charge-sheet, proceeding of the case was committed to the court of Sessions. As a sequel to that, Sessions Judge, Bijnor allotted S.T. No.858 of 2008, State Vs. Vakeel Ahmad. The Sessions Judge, Bijnor heard the accused on point of charge and he was, prima facie, satisfied with the case u/s 376 IPC against the accused-appellant. Therefore, it framed charge against the accused-appellant under Section 376 IPC. Charge was read over and explained to the accused, who abjured the charge and opted for trial.
Thereafter this case was transferred for disposal to the court of Additional Sessions Judge, court no.6, Bijnor.
In turn, the prosecution, in order to prove guilt of the accused examined as many as five prosecution witnesses. Brief sketch of the witnesses is herein below:-
Shamima is the P.W.1. She has lodged the first information report. She is the wife of accused.
Victim herself is the P.W.2. She is the daughter of the accused.
Umendra Pal Singh is P.W.3.
Dr. Savita is P.W.4. She has medically examined the victim besides, assessing the age of the victim as 17 years. She has proved the medical examination report of the victim i.e. Exhibit Ka-5 and Ka-6.
Subodh Kumar Saxena is P.W.5. He has proved the part of investigation he conducted. He has filed the charge- sheet against the appellant, Exhibit Ka-8.
Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he has submitted that he has been falsely implicated in this case.
No evidence, whatsoever, was led by the defence.
The learned Additional Sessions Judge, court no.6, Bijnor, after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction and passed sentence for life imprisonment coupled with fine Rs.20,000/- for offence under Section 376 IPC and in default of aforesaid fine, he was directed to undergo one year additional rigorous imprisonment.
Resultantly, this appeal.
It has been vehemently contended on behalf of the appellant that in this case the charge itself is speaking of manipulation made by the informant. Assuming it to be that any offence was committed, even then this sort of incident as stated to have been going on for quite some time and the informant came to know about the commission of the offence only when the victim developed 20-222 weeks pregnancy, which under facts and circumstances, is intriguing on the part of the informant herself; that how she being the mother of the victim and residing with her could not know any symptom of pregnancy or any change in the person of her own daughter. This by itself is a particular circumstance of this case, which was not considered in right perspective by the trial court at all. She further submitted that in this case the fact is that the informant is trying to conceal her own sin as she has illegal affair with someone else, it has been deliberately thrusted upon accused for the reasons best known to the informant herself. The Investigating Officer also colluded with the informant and the concerned Gram Pradhan and has deliberately collected false evidence and filed the charge- sheet. The prosecution case does not inspire confidence and the trial court failed to appreciate properly these particular aspects of the case and erroneously recorded conviction and passed sentence.
While retorting to the aforesaid submissions learned AGA submitted that peculiarity of this offence is surrounded by its circumstances. The family of the victim was headed by the accused himself. He being the father had full control over the family. He further adds that there is no iota of evidence or circumstance pointing to the fact that someone else than the accused also visited the house of the victim or the victim remained in the company of any stranger, who could have committed the offence. He engaged attention of this Court to the medical examination, which establishes fact of pregnancy and describes pregnancy to be 22-23 weeks old. Father himself could not spell name of any stranger, who could have committed such offence and the fact is that after coming to know about the fact of pregnancy, the father fled away from the scene, whereas he was required to take appropriate action and to have come to the rescue of his daughter, which act he refrained from.
Also considered the above rival submissions.
In the light of the submissions so made and in the light of the claim made by both the sides, the point that arises for adjudication of this appeal relates to fact, whether the prosecution has been able to prove its case beyond reasonable doubt against the accused?
At the very outset, it is gathered conveniently from perusal of the first information report, Exhibit Ka-1, that the victim happens to be minor daughter of the accused. She used to go in the company with the accused to forest situated outside of village- Hamidpur 8 kms. away from the police station Kotwali Shahr, district Bijnor, when alleged crime was committed by the accused and this process continued for quite some time and was known only when the victim developed pregnancy of around 22 weeks. In so far as factum of pregnancy is concerned, then we may conveniently observe that the testimony of Dr. Savita Gupta P.W.4 is consistent with examination of the victim that she was carrying pregnancy of 22 weeks and she has proved this medical examination as Exhibit Ka-5.
Needless to say that the entire testimony of the prosecutrix (P.W.2) herself is indicative and suggestive of fact in clear- cut terms that it was accused and accused alone who committed rape on her repeatedly when she used to go with him to the village forest for collecting woods. Not a single suggestion of any sort has been put to her in cross- examination as to someone else than the accused committed the offence or suggested that she is deposing on false line to the embarrassment of her own father. Her testimony is very much supported by the medical examination report, which speaks in crystal clear terms about the factum of 22 week old pregnancy. This way also the testimony of the prosecutrix stands corroborated with the medical examination of the victim.
No doubt in such cases, there should be independent corroboration of the version given by the prosecutrix but circumstances when taken as a whole of the entirety of the case, it inspires confidence in the testimony of the victim, who has no reason to falsely implicate her own father, as an accused, then, the testimony of victim being unimpeachable cannot be sidelined and her testimony (victim) inspires confidence. The witness is creditworthy. Her testimony is unimpeachable and the same cannot be doubted.
In so far as contention of learned amicus curiae is concerned that some outsider committed rape on her and the accused was made escaped goat, cannot be accepted by us for the reason specific that it is merely an argument not supported either by any evidence or circumstance general or particular.
The aforesaid factual aspects, vis a vis, testimony on record and the entirety of the case was taken into consideration by the trial court and it rightly convicted the appellant, which, under the facts and circumstances of the case, is justified in awarding sentence of imprisonment for life against the accused, which in our considered opinion cannot be said to be either erroneous or illegal.
In view of above, the learned trial Judge while appraising the facts and circumstances of the case and evaluating testimony of the prosecution witnesses has rightly convicted the accused and passed just sentence for offence under Section 376 IPC, which finding and sentence is upheld by us in this appeal. Consequently, this appeal lacks merit and is accordingly dismissed.
Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.
Hon’ble Arvind Kumar Mishra-I,J.
Hon’ble Saral Srivastava, J.
Ms. Seema Pandey, learned Amicus Curiae has rendered assistance in deciding the appeal, which was pending since last eight years and, therefore, she is directed to be paid Rs. 10,000/- as her fees by the office of this Court.