ALLAHABAD HIGH COURT
CRIMINAL APPEAL No. – 285 of 2011
Jag Mohan S/O Ram Lal
State Of U.P.
Order Date :-09.06.2016
Hon’ble Dr. Vijay Laxmi,J.
Heard Shri Bhanu Pratap Singh, learned counsel for the appellant and Shri Mohd. Asif Khan, learned A.G.A. for the State and gone through the evidence on record.
2. The challenge in this appeal is to the judgment rendered by Additional Sessions Judge/FTC-9, Lucknow where the appellant was found guilty of offence punishable under Sections 354 and 376 of the Indian Penal Code, 1860 ( in short ‘the IPC’).
3. Prosecution version as unfolded during trial is as follows:-
The victim (P.W.-1) had gone in the field for reaping Junahari (grass) at about 2.00 PM on 22.10.2009 where the appellant came in the field, pulled her down and committed rape on her. On her outcry, the complainant, Hari Ram Yadav, the brother of the victim rushed the scene of the occurrence along with Harish Chandra, son of Bhagauti Yadav, of his village and had seen the appellant running away therefrom.
4. Learned Sessions Judge after careful appraisal of the evidence on record found that the appellant had committed the offence of outraging the modesty of women and rape and sentenced him to suffer rigorous imprisonment for a period of 7 years and fine of Rs.2000/- for the offence under Section 376 I.P.C and rigorous imprisonment for six months and fine of Rs. 100/- for offence under Section 354 IPC.
5. On completion of investigation, the charge sheet was submitted under Sections 354 and 376 IPC. The accused faced trial. In order to establish accusation, the prosecution examined 7 witnesses. The accused pleaded innocence and false implication. According to him, a false case was posed against him due to enmity. The trial court found evidence of the victim, the complainant and Harish Chandra to be cogent and credible and accordingly as noted above, it found the accused guilty.
6. In support of the appeal, learned counsel for the appellant submitted that the trial court failed to take notice of first FIR of 22.10.2009 which was lodged under Section 354 IPC and inconsistencies in the evidence of the witnesses and in any event no case under Section 376 IPC is made out. Strong reliance is placed on the first FIR dated 22.10.2009 and the medical evidence to contend that at the most the offence can be in the terms of Section 354 IPC.
7. Per contra, learned counsel for the respondent-State submitted that the trial court has analyzed the evidence in great detail and had rightly concluded that offence punishable under Sections 354 and 376 IPC was fully proved.The first FIR was lodged by the complainant, the brother of the victim on 22.10.2009 making allegation against the accused of using criminal force to outrage modesty of the victim. According to Learned AGA, the prosecution has fully explained the circumstances under which the complainant was misguided and compelled by the police of the PS concerned to lodge the FIR on 22.10.2009 only under Section 354 IPC in place of Section 376 IPC. It was fully proved by the complainant, P.W.-2, the victim P.W.-1 and Harish Chandra P.W.-3 that they were compelled by the Darogaji at police station on 22.10.2009 to lodge a report under Section 354 IPC in place of Section 376 IPC who told them that otherwise it would cast stigma on her sister and will create obstruction in her marriage. When no action was taken by the police for two days, the application was given by the complainant to the SSP stating actual facts about the commission of rape on the sister of the complainant. The police of the Thana concerned did not permit the complainant to write actual facts in the first FIR on 22.10.2009. Thus, the FIR was made by the complainant to the SSP on 24.10.2009 and the action was taken by the police thereafter. It is argued by learned AGA that there is nothing on record to disbelieve this version of the prosecution.
8. Coming to the question as to whether Sections 354 and 376 of the IPC have any application, it is to be noted that the provision of Section 354 makes penal assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of the offence under Section 354 IPC are as under:
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force on her.
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined in IPC. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. The Shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows:
“Decorous in manner and conduct;
not forward or lower; Shame-fast;
9. The definition of rape is contained in Section 375 IPC as under:
375. Rape.–A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
(First) — Against her will.
(Secondly) –Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) –With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age.
10. In the instant case, the prosecution case was fully supported by victim by her statement and nothing has been brought out in her cross-examination from which any doubt could be raised about her veracity. The statement of the victim, P.W.-1 is found to be clear, cogent and specific proving charges under Section 354 and 376 IPC. Her statement receives ample corroboration from testimony of Hari Ram Yadav, P.W.-2, her brother, who even otherwise would be the last person to come forward with a false accusation of the type of rape on his young unmarried sister. The victim was also corroborated by her neighbour Harish Chand, who rushed to the spot having been attracted by alarm raised by the victim. Their testimony has impressed the Trial court and the Trial court finds them to be as truthful and reliable witnesses. The evidence of Hari Ram Yadav, P.W.-2 and Harish Chand who had also seen the accused running away from the seen of crime lends credence to the prosecution version.
11. I do not agree with the contention raised by learned counsel for the appellant-accused that the conviction on the basis of uncorroborated testimony of the victim was not safe. There is no legal compulsion to look for corroboration of the evidence of the victim before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the victim, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. In the present case, the evidence of the victim is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record.
12. The suggestion was given to the victim during cross-examination that the appellant-accused was falsely implicated in this case on account of their enmity with the complainant regarding distribution of water in their fields who were neighbours. But there is no evidence given by the accused in support of his case that the complainant and accused were having their fields in vicinity and there had been long standing dispute between them regarding distribution of water. I find no reason that the brother of the victim would go to that length to falsely implicate the appellant.
13. The victim was a minor girl who was below 16 years. In medical report, she has been stated to be 16 years of age. The School Admission Register of her primary school indicates that her date of birth was 13.08.1994 which comes to about 15 years. There is nothing on record to rebut the said date of birth of the victim. The prosecution has proved this date of birth by examining Alpna Chandra, P.W.-2, the Principal of Primary School, Gosva Terva, P.S. Malihabad, who produced the admission register of the school in the court and proved it as exhibit Ka-3. The name of the victim is mentioned at Sl. No.5 of this register and according to this register the date of birth of the victim is 13.08.1994. The statement of brother of the victim regarding her age are corroborative of entries made in the school register. There was no reason to disbelieve that the victim was below 16 years of age on date of the incident.
14. It is argued by leaned counsel for the appellant that the statement of the victim was not recorded under Section 164 CrPC nor her medical report supported the prosecution case. However, the medical examination of the victim was conducted by the doctor on 25.10.2009 that is after three days of the incident. It is clear from perusal of record that investigating officer did not make effort to record the statement of the victim under Section 164 CrPC before the Magistrate. There was no parcha in the case diary stating the fact that any effort was made by the investigating officer to record the statement of victim under Section 164 CrPC and thus he failed to record the same. Had there been any effort on the part of the investigating officer to record the statement of the victim, it would have been recorded in the case diary which was not done. During cross-examination, the investigating officer, Vinod Kumar Pandey, S.I., Malihabad, P.W.-7 stated that he made attempt to call victim for her statement under Section 164 CrPC himself and through constables but she did not turn up for recording her statement and thus her statement under Section 164 CrPC could not be recorded. But the statement of the IO could not be believed for want of evidence. The victim has undergone the medical examination and there is no reason why she shall deny for her statement to be recorded under Sec.164 CrPC.
15. The investigating officer, P.W.-7 also stated that the cloths of the victim were put in a sealed cover, but no such cloths have been produced or proved before trial court. However, there have been lapses on the part of the investigating officer but the accused cannot be given any benefit of the said lapses. As regards the question of defective investigation, the settled position is that incompetent prosecuting agencies or prosecuting agencies which are driven by extraneous considerations and commit mistakes, should not given undue importance, particularly in offences relating to women and children, otherwise every criminal case would end in acquittal. It was observed by Hon’ble Supreme Court in Karnel Singh v State of MP (1995)5 SCC 518 that where the investigation was defective, the court has to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
16. The same view was expressed by by Hon’ble Supreme Court in Surendra Paswan v. State of Jharkhand (2003) 12 SCC 360. In that case the investigating officer had not sent the blood samples collected from the spot for chemical examination. This Court held that merely because the sample was not so sent may constitute a deficiency in the investigation but the same did not corrode the evidentiary value of the eye-witnesses.
17. In Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517 Hon’ble Supreme Court while dealing with the effect of shoddy investigation of cases held that if primacy was given to such negligent investigation or to the omissions and lapses committed in the course of investigation, it will shake the confidence of the people not only in the law enforcing agency but also in the administration of justice.
18. In Amar Singh v. Balwinder Singh and Ors. (2003) 2 SCC 518 the investigating agency had not sent the firearm and the empties to the forensic science laboratory for comparison. It was argued on behalf of the defence that omission was a major flaw in the prosecution case sufficient to discredit prosecution version. Hon’ble Supreme Court, however, repelled that contention and held that in a case where the investigation is found to be defective the Court has to be more circumspect in evaluating the evidence. But it would not be right to completely throw out the prosecution case on account of any such defects, for doing so would amount to playing in the hands of the investigating officer who may have kept the investigation designedly defective. Hon’ble Supreme Court said:
“The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident.”
19. In Sukhvinder Singh vs State Of Punjab (2014) 12 SCC 490, Hon’ble Supreme Court observed as under :
18.But, if such mistakes or lapses are given undue importance every criminal case will end in acquittal. While it is true that the police should not involve innocent persons, fabricate evidence and obtain convictions, it is equally true that cases in which substratum of the prosecution case is strong and substantiated by reliable evidence, lapses in investigation should not persuade the court to reject the prosecution case. The court with its vast experience should be quick to notice mischief if there is any. Incompetent prosecuting agencies or prosecuting agencies which are driven by extraneous considerations should not be allowed to take the court for a ride. Particularly in offences relating to women and children, which are on rise, the courts will have to adopt a pragmatic approach. No scope must be given to absurd and fanciful submissions. It is true that there can be no compromise on basic legal principles, but, unnecessary weightage should not be given to minor errors or lapses. If courts get carried away by every mistake or lapse of the investigating agency, the guilty will have a field day. The submissions relating to alleged overwriting and discrepancies in timings and dates, therefore, are rejected.
20. In the case of State of West Bengal v. Mir Mohammad Omar and ors (2000) 8 SCC 234 the Supreme Court observed as under:
In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case.
21. In the instant case, the lacuna in the investigation stands completely covered by the statements of witnesses. The evidence of the victim and witnesses clearly establishes the story of the prosecution. In view of the clear statement of the prosecution witnesses, I have no hesitation in rejecting the arguments of the appellant.
22. In the statement recorded under Section 313 CrPC, accused took a plea that he was falsely implicated due to enmity but he did not try to explain the nature of the enmity or to establish the same. The accused did not offer any explanation regarding nature of the enmity nor produced any witness in their defence. The accused could not produce any cogent and material evidence on record to prove the alleged enmity.
23. It is not the case of the accused that there was the consent of victim. Moreover, the girl was below 16 years, hence the consent was immaterial and accused was rightly convicted by the trial court.
24. The injury which the victim suffered or might have suffered in defending herself and offering resistance to the accused could be abrasions or bruises which would heal up in ordinary course of nature within two or three days of the incident. The absence of visual marks of the injuries on the person of a victim on the date of her medical examination would not necessarily mean that she has not suffered any injury or that she has offered no resistance at the time of commission of the crime. The absence of injury on the person of the victim is not necessarily an evidence of falsity of the allegation or evidence of consent on the part of the victim. It will depend on the facts and circumstances of the case. See, The State of Rajasthan versus Noore Khan, AIR (2000) 5 SCC 30. In the instant case, the medical examination of the victim was done on 25.10.2009 i.e. after three days of the occurrence. It could not be said that merely absence of injury either on the person or on private part of the girl or the accused would be an indication of innocence of accused. The gap between occurrence and medico legal examination ruled out any possibility of any injury being healed and disappeared. It is proved by evidence on record that victim was sexually assaulted by the accused.
25. It is to be remembered 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. In The State Of Punjab vs Gurmit Singh & Ors (1996) 2 SCC 384, Hon’ble Supreme Court Observed as under :
21. 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.
26. When the evidence of the victim is considered in this case in the proper perspective, it is clear that the commission of actual rape has been established. The learned Sessions Judge, in my opinion, was, therefore, justified in relying upon the prosecution evidence and recording an order of conviction against the appellant for offences under Sections 354 IPC and 376 I.P.C. His findings were based on proper appreciation of evidence.
27. Now question remains about the awarding of proper sentence. The occurrence took place on 22.10.2009, more than six years ago. The learned Sessions Judge after recording the conviction under section 354 and 376 IPC had sentenced the respondent to suffer RI for seven years and six months respectively along with fine. The State did not move the High Court for any enhancement of the sentence. I, therefore, feel that the ends of justice would be met if the sentence to be imposed on the appellant is confined to seven years and six months RI as was awarded by the learned Sessions Judge for cogent reasons recorded by him. I may emphasise that though for such an offences a more severe sentence would have been desirable but I have restricted myself to the maintenance of the sentence as imposed by the learned Sessions Judge for the reason that the State did not seek any enhancement of the sentence by filing an appropriate petition in the High Court, while the case has remained pending here. No notice had been issued to the appellant to show cause as to why a more deterrent sentence, than the one imposed by the Sessions Judge, be not imposed upon him and without putting him on such a notice, the Court cannot enhance the sentence. If the notice were to issue now, it would further delay the disposal of the case and I do not consider that to be a proper course to be adopted. The more stringent minimum sentence prescribed for offence under Section 354 and 376 IPC was also incorporated in the Code by an amendment only with effect from February, 2013, after the offence in the present case had been committed.
28. Above being the position, I find no merit in this appeal which is accordingly dismissed.
Order Date :-09.06.2016