HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED

AFR

Case :- CRIMINAL APPEAL No. – 1807 of 2016

Mahesh Chamar son of Shri Ram Chamar, resident of Udaipur Grunt No.11, Police Station Mailani, District Kheri.

………………..Appellant.

Versus

State Of U.P

…………… Opposite party

Counsel for Appellant :- Jail Appeal,Dr Trishna Singh

Counsel for Respondent :- G.A

Hon’ble Anil Kumar Srivastava-II,J.

1. Heard Dr. Krishna Singh, learned Amicus Curiae and learned A.G.A. and perused the record.

2. Instant appeal has arisen against the judgment and order dated 19.8.2016, passed by the learned Sessions Judge/FTC, Lakhimpur Kheri in S.T. No. 313/2013, arising out of Case Crime No.12/13, under Section 376 IPC, Police Station Mailani, District Kheri, whereby the accused-appellant was convicted and sentenced under section 376 IPC for rigorous imprisonment for ten years and fine of Rs.10,000/- with default stipulation of three months imprisonment.

3. According to the prosecution, a report was submitted at the Police Station Mailani on 06.01.2013 at 04:00 PM by Ram Gopal complainant stating that on 06.01.2013 his minor daughter aged about 9 years victim along with her relative Harshit aged about 10 years was going towards Naya Gaon Chauraha from her house. When she reached near the expeller of Malkhan, one unknown person met them and asked to extend help for putting the leaf bundle. Victim and Harshit got induced and went with that unknown person. Unknown person dragged the victim to the sugarcane field of Prem Prakash and committed rape upon her. Harshit ran away from the scene and informed Ram Gopal complainant. Complainant along with his wife Sweety and Harshit reached at the spot where he found the victim in blood stained condition.

4. Accused can be identified by the victim as well as Harshit. On the basis of the written report first information report was registered at Case Crime No.12/13, under section 376 IPC. Investigation was handed over to Station Officer Suresh Pandey. Victim was medically examined on 06.01.2013. Investigating Officer recovered the blood stained earth as well as leaves from the place of occurrence. Site plan was prepared. X-ray of the bones of victim was conducted. Undergarments of the victim was also recovered by the Investigating Officer on 09.01.2013. Recovered articles were sent for medical examination. On the basis of X-ray report radiological age of the victim was assessed as ten years. Statement of victim as well as Harshit was recorded under section 164 Cr.P.C. wherein they have stated the name of accused as Mahesh as at the time of commission of offence he uttered his name and said that he has come out of jail and has also killed 2, 3 women. After concluding the investigation charge sheet was submitted against the accused appellant.

5. Accused-appellant was charged under section 376 IPC who denied the charge and claimed trial.

6. Prosecution has produced PW-1 Ram Gopal complainant, PW-2 Victim, PW-3 Dr. Pushpalata who has medically examined the victim, PW-4 Harshit, PW-5 Suresh Pandey Investigating Officer, PW-6 HCP Budhsen Verma, formal witness, PW-7 Dr. B.K. Verma Radiologist and PW-8 Ganga Ram.

7. In the statement under section 313 CrPC accused denied the prosecution version and stated that the witnesses have deposed against him falsely. He has been falsely implicated.

8. After appreciating the evidence on record, learned trial court has recorded a finding of conviction holding that the prosecution has successfully proved the charges against the accused. First information report was promptly lodged. Both the witnesses of fact namely victim as well as Harshit are child witnesses who have specifically identified the accused in the Court. Witnesses have also stated that the accused himself has told his name has Mahesh. Accused has committed rape upon the victim. Accordingly, learned trial court has convicted and sentenced the accused.

9. Learned Amicus Curiae has submitted that the prosecution has failed to prove the charges against the accused. First information report was lodged against unknown person. Accused was not named in the first information report. Name of the accused has been stated by the victim as well as PW-4 Harshit for the first time in the statement under section 164 CrPC before the Magistrate.

10. It is submitted that the accused has been falsely implicated due to enmity. If accused has uttered his name at the time of incident then the name of the accused should have been mentioned in the first information report. Non-mentioning the name of the accused in the report itself makes the prosecution case doubtful. It is further submitted that there are material contradictions in the statement of the victim as well as the statement of complainant and Harshit. Presence of complainant after the incident is also doubtful. First information report is ante-time. Statement recorded under section 164 CrPC itself makes the whole story improbable.

11. Learned A.G.A. submits that the prosecution has successfully proved the charges against the accused. First information report was promptly lodged. If there are any minor contradictions in the statement of the witnesses they are of no use as in the natural course such minor contradictions itself are bound to occur in the statement of witnesses. There is a difference between the tutored witness and natural witness. In a statement of natural witness some variations are bound to occur. If such variation does not go to the root of the case then they cannot make the prosecution version doubtful. It is further submitted that statement of victim as well as Harshit are wholly reliable.

12. It is a case where rape has been committed upon a minor girl of nine years. Facts of the case shows that she was going along with her relative Harshit who is also a boy of only ten years. When the accused induced them on the pretext of seeking help in putting the leaves bundles, innocent child readily agreed to the same. When they agreed, victim was taken to a sugarcane field wherein she was raped. No doubt, first information report of the incident was lodged on the same day at 05:30 PM while the incident is of 04:00 PM. As soon as the complainant (father of the victim) received the information from Harshit he ran away to the spot along with his wife where he found his minor daughter in a pool of blood. Immediately he came to the police station and lodged the report. There is no delay in lodging the first information report.

13. PW-1 Ram Gopal has stated that on the date of incident he had gone to the market to sell the fish where Harshit along with one person reached there and narrated the story. Then he reached at the field wherein his wife also came and saw the victim. Then he went to the police station and lodged the report. After about 8-10 days victim and Harshit told him the name of accused. An argument has been placed that when the victim and Harshit were knowing the name of the accused then why name of the accused was not mentioned in the written report ? Why the name of accused was told after ten days in the statement under section 164 CrPC ? An explanation is given by PW-1 Ram Gopal that victim and Harshit has not told the name of the accused at the time of lodging the report as they were scared. PW-2 victim has stated that the accused had threatened her that he has been released from jail. He has already killed two to four women and would also kill them. She was so scared that she could not name the accused at the time of lodging the report. Specifically she has stated that she has identified the accused in the court. PW-4 Harshit has also stated that he along with the victim were threatened by the accused by showing a knife. First information report was lodged promptly.

14. In State of Himanchal Pradesh vs. Sanjay Kumar, 2017 (2) SCC 51 the Hon’ble Apex Court has considered the point of delay in lodging the first information report. Although, in the present case there is no delay in lodging the first information report but there is a delay in telling the name of the accused which was stated in the statement under section 164 Cr.P.C. recorded on 15.01.2013. It is stated that the victim was so scared of the incident that she could not speak the name of the accused although at the same time the victim as well as PW-4 have identified the accused in the court also.

15. In State of Himanchal Pradesh vs. Sanjay Kumar (supra) Hon’ble the Apex Court has placed reliance upon Tulsidas Kanolkar vs. State of Goa, 2003 (8) SCC 590 wherein it was held that :-

“5……………. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle.”

16. Delay in naming the accused is duly explained by PW-2 victim as well as PW-4 Harshit. Nature of the incident is such which had created a mental trauma in the mind of the victim as well as Harshit that they were not able to speak the name of the accused at the time of lodging the FIR. Moreso, they have identified the accused in the court, so any delay on the part of the victim to name the accused is duly explained.

17. In State of Himanchal Pradesh vs. Sanjay Kumar (supra) it was held by the Apex Court in para 31 that :-

“By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not a accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. 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? The plea about lack of corroboration has no substance. (See Bhupinder Sharma vs. State of H.P., (2003)8 SCC 551.)

18. In State of Rajasthan vs. Om Prakash, (2002) 5 SCC 745 in para 19 it was held that :-

“19. Child rape cases are cases of perverse lust of sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts ignore onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country’s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well considered and well analyzed judgment of the trial court on grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant.”

19. In State of Karnataka vs. F. Natraj, (2015) 16 SCC 752 relying upon Mohd. Ali vs. State of U.P., (2015) 7 SCC 272, para 30 held that :-

“30. True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony.”

20. In Dinesh alias Buddha vs. State of Rajasthan, (2006) 3 SCC 771 it was held in para 11 that :-

“11. In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. 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 even occurred. She would be conscious of the danger of being ostracized by society and when in the fact of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has ssustained 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 sexual offence is entitled to great weight, notwithstanding the absence of corroboration. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. State of Rajasthan, 1952 SCR 377 were :

“The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge,…..”

21. In Bhupinder Sharma vs. State of Himanchal Pradesh, (2003) 8 SCC 551, it was held in para 12 that :-

“12. To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will nto be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime . ( See State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990)1 SCC 550). Why shold 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? The plea about lack of corroboration has no substance.

22. In Dilip vs. State of M.P., (2001) 9 SCC 452, it was held in para 12 and 13 that :-

“12. The law is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. Vs. Gian Chand (2001) 6 SCC 71 on a review of decisions of this Court, it was held that conviction for an offence of rape can be raised on the sole testimony of the 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. This Court relied upon the following statement of law from State of Punjab vs. Gurmit Singh, (1996) 2 SCC 384 SCC (para 21):

“If 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 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 must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations……”

13. In Madan Gopal Kakkad vs. Naval Dubey, (1992) 3 SCC 204 this Court has held (vide para 23) that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factor” does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.

23. In the backdrop of the above legal propositions evidence of the prosecutrix along with PW-4 Harshit is to be examined. At the same time an argument is raised that the proper test identification parade is not conducted. In this regard suffice is to say that the victim as well as PW-4 Harshit have stated the name of the accused in their statement under section 164 CrPC. They have duly identified accused in court.

24. In S. vs. Sunil Kumar, (2015) 8 SCC 478 facts of the case were similar wherein the accused was also not named in the first information report. Age of the victim was 10-14 years. Victim identified the accused in the court. The Hon’ble Apex Court has referred and confirmed the view taken by the Apex Court in Ashok Deebarma vs. State of Tripura, (2014) 4 SCC 747 wherein it was held that the identification for the first time in court is good enough and can be relied upon if the witness is otherwise trustworthy and reliable. In the present case also accused has been identified in the court.

25. Further, in the case of S. vs. Sunil Kumar (supra) Hon’ble the Apex Court has placed reliance on para 16 of Malkhan Singh vs. State of MP, (2003)5 SCC 746, wherein it was held that :-

“16.. …. She also had a reason to remember their faces 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 have got imprinted in her memory, and there was no chance of her making a mistake about their identity.”

26. PW-2 victim has specifically stated that she was going along with Harshit to the market. On the way accused induced them and requested to help him in putting up the bundle of leaves. When they accompanied the accused, he dragged the victim in the field of Prem Prakash wherein she was raped. Although accused has stated his name but the same could not be written in the report. PW-2 victim has identified the accused in the Court. It is further stated that she was threatened by the accused on the point of a knife. She was bleeding after the commission of rape. No external injury on the body was caused. Accused tried to strangulate her neck. Accused ran away from the spot after commission of the rape. Thereafter her parents came and took her with them. PW-4 Harshit has also supported the prosecution version wherein it is stated that he along with victim was going to the market wherein the accused induced them near the expeller and requested to help him. Thereafter, he dragged both of them in the field wherein accused committed rape with victim. Harshit ran away and informed the complainant then they went at the field wherein victim was lying. Blood was oozing. Statement of these two witnesses are wholly reliable. There is no doubt about the truthfulness of the statement of the witnesses which is further corroborated by the statement of PW-3 Dr. Pushplata, who had medically examined the victim and found that vagina admits one finger, hymen torn at 6 O’ clock bleeding on touch. It extend up to Perennium. Dressing done and victim was admitted. In the supplementary report also it is mentioned that it is a case of sexual assault, hence, there cannot be any doubt about the truthfulness of the statement of the victim as well as Harshit.

27. Investigating officer has recovered the blood stained earth as well as the undergarments of the victim. Blood was found on the undergarments as well as the blood stained earth. Investigating Officer has prepared the site plan which is duly proved and supported by the complainant.

28. A defence is taken about the enmity for false implication which could not find support from the evidence on record.

29. Considering all aspects and evidence and material available on record, I am of the view that the learned trial court has rightly appreciated the evidence on record. Prosecution has successfully proved the charge under section 376 IPC against the accused. Learned trial court has rightly convicted and sentenced the accused. Appeal has no force and is liable to be dismissed and is accordingly dismissed. Accused is in jail. He shall serve out the sentence as imposed by the learned trial court and confirmed by this Court.

30. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.

31. Learned Amicus Curiae shall be entitled for his fee in accordance with rules.

Date :- 12.4.2017

mks

(Anil Kumar Srivastava- II, J.)