HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Date of Judgment reserved: 20.03.2017

Date of delivery of Judgment: 21.04.2017

Court No. – 36

Case :- JAIL APPEAL No. – 1697 of 2014

Appellant :- Subhash Harijan

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Lalji Chaudhary

Counsel for Respondent :- A.G.A.

Hon’ble Ramesh Sinha,J.

Hon’ble Krishna Pratap Singh,J.

(Delivered by Hon’ble Krishna Pratap Singh,J.)

1. Heard Sri Lalji Chaudhary, learned counsel for Legal Service Authority for the appellant and Sri Ashish Pandey, learned A.G.A. for the State.

2. The present criminal appeal is directed against the judgment and order dated 29.01.2014 passed by Additional Sessions Judge, Court No. 8/Room No. 11, Gorakhpur in Sessions Trial No. 206 of 2012 arisen out of Criminal Crime Case No. 03 of 2012 (State vs. Subhash Harijan), under Section 376 (2) I.P.C., Police Station Harpur Budhat, District Gorakhpur. By the impugned judgment learned trial Judge has convicted and sentenced the appellant-accused under Section 376 (2) I.P.C. to serve life imprisonment along with a fine of Rs. 10,000/- and to undergo 6 months further imprisonment in default of payment of fine. Learned trial Judge has also directed that half of the amount of fine shall be paid to the victim as compensation.

3. Briefly the facts of the case are as follows:-

4. Informant Panmati wife of Chandrika Kahar PW-1 is resident of Ram Nagar Suras, Police Station Harpur Budhat, District Gorakhpur. On 02.01.2012 at around 8:30 O’clock she was at home with her daughter victim PW-2 aged about 7 years. A native of her village appellant-accused Subhash Harijan son of Santbali Harijan called her daughter victim PW-2 from her home and took her outside. She doubted why appellant-accused was taking along her daughter in the night. Immediately after appellant-accused went, she also followed him and found that the appellant-accused was forcibly having sexual intercourse with her daughter at Amalhawa Garden. Her daughter victim PW-2 was crying loudly. On seeing her appellant-accused ran away from the spot. It is further alleged in the first information report that informant Panmati PW-1 raised alarm. Several villagers ran towards the spot. The panty (kachchi) of her daughter was blood stained and the blood was oozing from her private parts. She had taken her daughter victim PW-2 to the police station. On the basis of written complaint Exhibit Ka-1 given by the informant a case was registered at Police Station Harpur Budhat, District Gorakhpur as Crime No. 03 of 2012, under Section 376 I.P.C. on 03.01.2012 at about 7:20 hours.

5. Constable No. 1470 Babadeen Gautam PW-3 had prepared chik FIR Exhibit Ka-3 and GD entry Exhibit Ka-4. Thereafter, Investigating Officer Sub-Inspector Ram Chandra Bharti PW-6 in whose presence the case was registered commenced investigation into crime. Investigating Officer recorded the statement of informant Panmati PW-1, victim PW-2 and Constable Babadeen Gautam PW-3 at police station on 03.01.2012. Investigating Officer went to the place of occurrence and on pointing out of informant Panmati PW-1 and victim PW-2 after conducting the spot inspection site plan Exhibit Ka-7 was sketched. Investigating Officer also collected the blood stained and semen panty (kachchi) and prepared recovery memo Exhibit Ka-2 on 17.01.2012. After recording the statement of the victim PW-2 under Section 164 Cr.P.C. paper no. 11Ka/1, the case property was sent to the Forensic Science Laboratory (FSL), Varanasi. Concerned letter is Exhibit Ka-8. Investigating Officer during the course of investigation recorded the statement of witnesses. After completion of investigation charge-sheet Exhibit Ka-9 was forwarded against the appellant-accused.

6. Doctor Subhra Singh PW-5 Medical Officer, District Mahila Hospital Gorakhpur who medically examined on 03.01.2012 the victim PW-2 and had noted the following facts:-

Height – 100 Cm.

Weight – 15 Kg.

Teeth – 10/10

Breast – not developed

Pubic and axillary hair not present. No other injury seen on the body parts or private part. Patient has having fever. Abdomen swollen. Injuries seen on anterior vaginal wall Posterior vagina wall was torn up to the rectum. Bleeding present. Medical examination report is Exhibit Ka-6. On the basis of supplementary report Exhibit Ka-7 Doctor Subhra Singh PW-5 opined that no definite opinion regarding rape can be given. Doctor V.P. Singh PW-4 on the basis of X-Ray report Exhibit K-5 and X-Ray plate material Exhibit Ka-1 opined that victim PW-2 was aged about 7 years old.

7. On the strength of submitted charge-sheet the appellant-accused was summoned. Since disclosed offence was exclusively triable by the Sessions Court, the learned Additional Civil Judge (Junior Division), Court No. 23 Gorakhpur committed the case to the Court of Sessions where it was registered as Session Trial No. 206 of 2012 (State vs. Subhash Harijan). The aforesaid sessions trial was transferred to the Court of Additional Sessions Judge, Court No. 8/Room No. 11 Gorakhpur for trial.

8. The learned trial Judge charged the appellant-accused with offence under Section 376 I.P.C. on 01.10.2012. Charge being read over and explained to the appellant-accused, appellant-accused pleaded not guilty and claimed to be tried and consequently sessions trial procedure was restored to establish the guilt of the appellant-accused.

9. In order to prove its case prosecution has examined informant Panmati PW-1 and victim PW-2 as the witnesses of fact. Constable Babadeen Gautam PW-3, Doctor V.P. Singh PW-4, Doctor Subhra Singh PW-5 and Investigating Officer Sub-Inspector Ram Chandra Bharti PW-6 are the formal witnesses.

10. Informant Panmati PW-1 is mother of the victim PW-2. Panmati PW-1 has deposed that she has five issues. Out of them three are girls and two are boys. Her husband lives in Mumbai. One of her sons Lav Kush also lives in Mumbai with her husband. The age of Lav Kush at the time of incident was about 12 years. Remaining four children live with her in the village. At the time of incident her daughter Sunita was aged around 11 years, victim aged 7 years, Neetu aged about 3 years and son Vishal was 8 years old and they were living with her. The incident had taken place around one year and four months ago at 8:30 P.M. It was a moon lit night. An earthen lamp was lit at her home. A native of her village appellant-accused Subhash Harijan came to her home at 8:00 P.M. Appellant-accused Subhash Harijan called and took her daughter (victim PW-2), who was about 7 years old at the time of incident with him from her home. When he did not come back with her daughter victim PW-2 after around half an hour, she along with her children and some villagers left her house in search of her daughter victim PW-2. In search of her daughter, she reached the ‘Arhar Field’ of one Raghubir situated at a distance of around 10 Bighas from Amalahwa garden out of the village. Her daughter victim PW-2 was crying. The children asked her to go inside. When she went there, she saw that the appellant-accused Subhash Harijan, was having sexual intercourse with her daughter victim PW-2 by removing her panty (kachchi). When she tried to catch hold the appellant-accused, he ran away by brushing her hand aside. She returned to house with her daughter victim PW-2. When the appellant-accused Subhash Harijan took her daughter victim PW-2 from her house, her other daughter Sunita, son Vishal and the youngest daughter Neetu were present at home and had seen her daughter being taken away by him. She has further stated that when she brought her daughter victim PW-2 at home, some villagers gathered there. She had dictated the complaint of this incident, got it read out and after hearing the same had put her thumb impression over it and next morning she had left her house at 5 O’clock, reached Police Station Harpur Budhat, District Gorakhpur and got the case registered. The written complaint being paper no. 5Ka/2 Exhibit Ka-1 available on record was read over to the witness. She stated that it to be the same complaint which she had dictated and submitted with the police station, thumb impression was put over it. The written complaint being paper no. 5Ka/2 was marked as Exhibit Ka-1.

11. She has also deposed that on being demanded by Sub-Inspector (Daroga Ji), she had given her daughter’s panty (kachchi) worn by her at the time of occurrence which had come to be stained with blood. Sub-Inspector (Daroga Ji) had prepared papers regarding the panty (kachchi) being given. On the next day of occurrence, this memo was prepared for handing over the panty (kachchi). She had put her thumb impression on the memo. The witness verified her thumb impression on the memo in connection with the police taking possession of victim’s PW-2 panty (kachchi) stained with blood and semen. The memo is marked as Exhibit Ka-2. Victim PW-2 was brought by lady constable and police personnel to Gorakhpur where her medical examination was conducted. The place of occurrence was shown to the Sub-Inspector (Daroga Ji) by her and her daughter victim PW-2. The Sub-Inspector (Daroga Ji) had recorded her statement in connection with occurrence.

12. PW-2 is aged about 7 years is the victim of the rape. Learned trial Judge has recorded her voir dire before recording her statement. The following questions are being asked from her to know whether she is capable or understanding and answering the questions or not.

Question: What is your name?

Answer: Puneeta.

Question: What is your age?

Answer: Eight years.

Question: What is the name of your father?

Answer: Chandrika.

Question: Do you ‘swear’?

Answer: Yes, I do swear on ‘Gangajal’ (holy water of the Ganges).

Question: Do you tell the truth or falsehood on oath?

Answer: I tell the truth.

Question: How many brothers and sisters do you have?

Answer: I have sisters Sunita, Neeta and Puneeta and my brothers are Lav Kush and Vishal.

Question: What is your mother’s name?

Answer: My mother’s name is Panmati.

13. Learned trial Judge has mentioned in her statement that she appears to be capable of understanding the questions and giving replies. Victim PW-2 has deposed that more than one year has passed, appellant-accused Subhash Harijan a resident of Suras called her. He called her from her house. Appellant-accused took her to the field of Pigeon Pea (Arhar) there, he removed her panty (kachchi). He committed rape on her (Gandi Adat Kari). He inserted his urinary organ. Her urinary organ sustained injury. It was bleeding. When she wept, he beat her. On her weeping, her mother Panmati PW-1, brother Sonu, Mitaanu and other persons of the village came there. Her mother Panmati PW-1 tried to catch hold of appellant-accused Subhash Harijan, but he managed to give her a slip. She has also stated that when her statement was recording appellant-accused was present in the Court. Looking towards appellant-accused Subhash Harijan, she said that he had committed rape (Gandi Adat Kara Tha) on her. Her panty was stained with blood. Thereafter, she came to her house. The next day early in the morning her mother, she went to the police station. Police took her panty (kachchi) and she put on another underwear. She was also taken to a Doctor. The appellant-accused Subhash Harijan would seldom come to her house. Sub-Inspector (Daroga Ji) had inquired of her. She had also stated this fact to Judge Sahab earlier.

14. After closure of prosecution evidence statement of appellant-accused under Section 313 Cr.P.C. was recorded. In his examination under Section 313 Cr.P.C. the defence of the appellant-accused is that of denial and false implication. Appellant-accused has further stated that the informant Panmati PW-1 had borrowed Rs. 7,000/- from appellant-accused, when appellant-accused asked to return the same, she could not return the aforesaid amount to him. Hence the informant has falsely implicated him in the present case. The appellant-accused did not lead any oral or documentary evidence in defence.

15. After appreciating the evidence available on record the trial Court convicted the appellant-accused as above. Hence the instant appeal.

16. Learned counsel for the appellant-accused has submitted that the FIR of the case is belated without any satisfactory explanation. So called witnesses of the facts are interested and partisan as they are mother and daughter (victim PW-2) and has given contradictory statement which go to falsify the whole prosecution story. It is also submitted that the prosecution has fully failed to prove it’s case beyond reasonable doubt. It is further submitted that blood stained and semen were found on the clothes of the victim PW-2 were sent for examination on 21.01.2012 through constable Indrdev Yadav to the Forensic Science Laboratory Varanasi by the letter Exhibit Ka-8 and also described in C.D. as lot no. 37 of 2012 but there is no such report of Forensic Science Laboratory on record, so the judgment and order passed by the learned trial Judge is not sustainable in the eye of law and liable to be set aside to secure the ends of justice. It is further submitted that the son of informant Panmati’s brother’s son namely Sonu has committed rape on victim PW-2 but due ill motive informant Panmati PW-1 has named appellant-accused in the FIR. In these facts and circumstances of the case, the judgment and order in question is liable to be quashed.

17. Learned A.G.A. for the State has submitted that the incident is said to have taken place on 02.01.2012 at 8:30 P.M. in the night time. On the next day the FIR of this case has been lodged at 7:20 hours. It was submitted that due to night FIR was lodged on the next day in the morning. So it cannot be said that the FIR of the case is belated. It was further submitted that prosecution witnesses are found to be wholly reliable and trustworthy. It has further submitted that appellant-accused has come with vague defence of money dispute and no specific enmity and money dispute could be brought to the notice of the Court to show such defence of false implication has any substance. It has also submitted that the appellant-accused is a person who had committed rape on victim PW-2. So the case of the prosecution stands wholly proved and criminal appeal is liable to be dismissed.

18. We have considered the submissions advanced by learned counsel for the parties and perused the judgment of the learned trial Court as well as the record of the case.

19. The first point which is to be considered in the present case is the delay in lodging FIR. The incident is said to have taken place on 02.01.2012 at 8:30 P.M. in the night time and FIR of this case has been lodged on the next day in the morning at 7:20 hours. According to the chik FIR Exhibit Ka-3 the distance of the village from police station was 5 K.M. Due to night informant had not gone to the police station for lodging the FIR. Next day i.e. 03.01.2012 informant Panmati PW-1 went to the police station and lodged FIR at 7:20 A.M., her daughter victim PW-2 aged about 7 years was raped. Considering the facts and circumstances of the case, it can be said that the delay in lodging FIR is satisfactory explained.

20. Learned counsel for the appellant-accused has submitted that informant Panmati PW-1 had borrowed Rs. 7,000/- from the appellant-accused, when appellant-accused asked to return the same, she could not return the money and falsely implicated him in the present case. The appellant-accused has put this facts in defence, but there is no corroborative material in support of the above facts. Panmati PW-1 and victim PW-2 have clearly deposed that appellant-accused had committed rape on victim PW-2. In cross-examination of informant Panmati PW-1 a suggestion has given by the defence that the son of Panmati’s brother namely Sonu, on the date of incident had committed rape on victim PW-2. If this version and suggestion by the defence is taken to be correct the natural ramification of it will be that the major part of the prosecution version will stand proved by the defence itself. By this defence version it is proved that the victim PW-2 was raped. In other words the facts of the rape is admitted to the appellant-accused. Once the fact of rape is admitted to the appellant-accused the scope of scrutiny remains in a narrow area to judge as to whether prosecution is true or defence plea that Sonu was real culprit is correct. When the facts, circumstances and the statement of the fact witnesses Panmati PW-1 and victim PW-2 are scrutinized it transpires that prosecution story holds the ground seems to be correct version because both the aforesaid witnesses has unambiguously stated that rape on victim PW-2 was committed by the appellant-accused. In spite of the searching cross-examination defence has not been able to dislodge their evidences. According to the medical report Exhibit Ka-6 and statement of Doctor Subhra Singh PW-5 “anterior vagina wall and posterior vagina wall of the victim PW-2 were torn up to the rectum.” There was serious injury on her private part. Though there was no injury on any other parts of her body. The victim PW-2 being a girl of about seven years of age was not expected to offer resistance as would cause injuries on other parts of her body. So in the present case medical report as well as defence both establish medical consistence with ocular version.

21. As to the Forensic Science Laboratory report is concerned, it is not on record but the informant Panmati PW-1 and victim PW-2 had consistently supported the prosecution case unfolded in the FIR and their evidence was corroborated by the medical evidence also. We have seen that according to the medical report Exhibit Ka-6 and statement of Doctor Subhra Singh PW-5 “anterior vagina wall and posterior vagina wall of the victim PW-2 were torn up to the rectum”, so non ability of Forensic Science Laboratory report would not be fatal for prosecution case.

22. Learned counsel for the appellant-accused has submitted that informant Panmati PW-1 and victim PW-2 are interested and partisan witnesses as they are mother and daughter. No independent witness of the locality has been examined therefore the statements of both the witnesses of fact should be discarded. We are unable to accept the aforesaid submission of learned counsel for the appellant-accused. It is true that the informant Panmati PW-1 mother of the victim PW-2 they can be said that they are interested and partisan witnesses. Interested and partisan witnesses by itself cannot possibly be a ground to reject the evidence on record. There is no hard or fast rule that evidence of an interested and partisan witness cannot be acted upon without corroboration. Presence of both the witnesses at the place of occurrence is proved and their evidence is consistent with the surrounding circumstances and the probabilities of the case and appears as a true and assurance is available from medical evidence also, so their testimonies could not be discarded by stating that they were interested and partisan witnesses. We have seen that rape has been committed on a tender aged girl of seven years. It will certainly create a permanent impact and impression on the mind of such a girl, which may permanently affect her adversely. The prosecution has able to prove its case beyond reasonable doubt against the appellant-accused. The charge of the rape levelled against the appellant-accused is well proved, therefore the appellant-accused has been rightly held guilty and has been rightly convicted for life imprisonment. We fully concur with the conclusion of the learned trial Court.

23. The appellant is stated to be in jail. He shall remain in jail and to serve out the sentence awarded to him by the trial Court.

24. Thus the present criminal appeal lacks merit and is hereby dismissed.

25. Sri Lalji Chaudhary who has argued the appeal on behalf of the appellant for Legal Service Authority shall be paid fee in accordance with Rules of Legal Service Authority.

26. Let a copy of the judgment be sent to the learned Sessions Judge concerned to take necessary action immediately for compliance of this judgment.

(Krishna Pratap Singh,J.) (Ramesh Sinha,J.)

Order Date :- 21.04.2017

A.K.Verma