HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- JAIL APPEAL No. – 2956 of 2001
Appellant :- Bachchu
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,D.P. Singh,Dinesh Kumar,Santosh Kumar Dubey
Counsel for Respondent :- A.G.A.
Hon’ble Bharat Bhushan,J.
Hon’ble Shailendra Kumar Agrawal,J.
(Delivered by Hon. Bharat Bhushan,J.)
1. Appellant Bachchu Singh has assailed the judgment and order dated 15.12.2000 passed by the then Second Additional Sessions Judge, Ghaziabad in S.T. No. 762 of 1998 under Section 376 of Indian Penal Code (IPC) arising out of Crime No.56 of 1998 P.S. Sector 20 Noida, District Gautam Budha Nagar whereby appellant was convicted and sentenced to life imprisonment and a fine of Rs.10,000/- with default stipulation. Out of the amount of Rs.10,000/-, Rs.5000/- was directed to be paid to complainant.
2. Prosecution case in short is that complainant Dalip Haldar (P.W. 1) and his wife Meena (P.W.2) were living in the Shanty No.B-274 within the jurisdiction of P.S. Sector 20 Noida. Appellant Bachchu used to live in another Shanty No. B-273 which was adjacent to the hut of complainant. On 19.01.1998 at about 5 pm. appellant Bachchu took one and a half year old daughter (victim) of complainant Dalip Haldar on the pretext of playing and took her to his own shanty. After some time complainant heard the cries of his daughter and rushed towards the hut of appellant Bachchu. He saw that the underwear of his daughter was blood stained. He questioned appellant Bachchu but he ran away from his hut.
3. First Information Report (FIR) was scribed by P.W. 3 Ashok Sarkar. Complainant Dalip Haldar reported this matter to the Police Station (P.S.) Sector 20, Noida at 8:45 pm. which was located almost 1/2 km. away from the place of occurrence. A copy of FIR is available on record as Ext. Ka-1. The police carved out a chik report (Ext. Ka-4) and made relevant entries into General Diary (G.D.) of concerned P.S., the extract of which is available on record as Ext. Ka-5. The victim was taken to Hospital where she was medically examined and given treatment by Dr. K. Prasad (P.W. 4). Medical report (Ext.Ka-2) disclosed following internal injuries on the person of victim:
“1. Laceration of vagina present.
2. Mankind congestion present around outer part of vagina.
3. There is teer ½ cms. long below labia majora.
4. Bleeding present from vagina.”
4. Sub Inspector Kamal Singh (P.W.5) commenced investigation. He went to the place of occurrence; prepared site plan (Ext. Ka-3); recorded statement of witnesses and thereafter submitted charge sheet against appellant Bachchu (Ext. Ka-6). After committal, trial judge framed charge under Section 376 IPC against appellant on 22.9.1998 which was denied by appellant who desired to be tried.
5. Prosecution adduced evidence of P.W. 1 Dilip Haldar (complainant), P.W. 2 Meena (mother of victim), P.W. 3 Ashok Sarkar (scribe the FIR), P.W. 4 Dr. K. Prasad (examined the victim), P.W. 5 S.O. Kamal Singh (Investigator).
6. The statement of appellant was recorded wherein he denied all allegations and claimed false implication for unknown reason. On evaluating evidence trial judge was convinced of available evidence, therefore, appellant Bachchu was convicted under Section 376 IPC and sentenced to life imprisonment and a fine of Rs.10,000/- with default stipulation vide judgment and order dated 15.12.2000. This judgment is under challenge before this Court.
7. Heard Sri Dinesh Kumar Advocate for appellant and Sri Ajeet Ray, learned A.G.A. on behalf of State.
8. Learned counsel for appellant has argued that there is discrepancy about the time and place of arrest. P.W. 1 Dilip Haldar has said that appellant was arrested from Cannaught Place, New Delhi while I.O. has claimed that arrest was made from Noida itself. Submission is that no independent witness has been produced despite large number of people living in the vicinity. Forensic report was not produced. Undergarment of victim was not taken into possession.
9. On the other hand, learned A.G.A. Sri Ajeet Ray has submitted that every mistake committed by Investigating Officer by itself would not entitle appellant of acquittal. Further submission is that there is no reason to falsely implicate appellant in this heinous crime. He has drawn the attention of this Court towards medical report which he claims is consistent with ocular evidence.
10. It is pertinent to note the background of all persons involved in this crime. The victim, her parents and the appellant admittedly belong to the different places of West Bengal but they were living in the shanties of Sector 9, Noida within the jurisdiction of P.S. Sector 20, District Gautam Budha Nagar for their livelihood. Record reveals that both complainant, Dilip Haldar and appellant belong to very poor section of society. Both of them were rickshawpuller at relevant point of time and also neighbour. Appellant Bachchu used to live in Shanty No. B-273 and complainant in adjacent Shanty No. B 274. This is also confirmed by site plan (Ext. Ka-3). Admittedly, their wives were also friendly to each other.
11. It is also admitted that appellant Bachchu off and on used to play with victim. Both appellant and complainant were neighbours for the last 4-5 years, hence, there was nothing unusual about appellant in taking one and a half year old, victim to his lap. There was also no reason for complainant to refuse him.
12. Entire case has to be taken into consideration in this backdrop. It is also pertinent to examine the medical report (Ext. Ka-2) and testimony of P.W. 4, Dr. K. Prasad. Dr. K. Prasad examined the victim in Government Hospital on the same day. When victim was brought to the hospital by constable Keshav Ram, the vagina of this little girl was lacerated and reddish congestion was also visible. A half cm. of cut mark was also found below labia majora . The blood was oozing out of vagina of this little girl. The testimony of P.W.4 Dr. K. Prasad has reiterated these facts. He has admitted that vaginal swab was taken and sent to pathology but this pathology report is not available on record. P.W. 4 Dr. K. Prasad has admitted that he did not receive the report from pathology.
13. Now the physical condition of this little girl, social and economical background of these witnesses as well as appellant and their rootless condition in and around Noida would show that unfortunately, such people are not priority for our law and order machinery. The incident occurred at 5 pm; report was lodged around 8:45 pm. and medical examination was conducted at 11 pm. The medical report shows that the child victim was in need of medical assistance but regrettably the medical assistance was provided to this victim girl with considerable delay. It is true that no external injury was noticed by Dr. K. Prasad yet the medical report indicates that child was handled violently by someone. Her vagina and her private parts were badly mutilated. This condition certainly indicates violent handling of this little child.
14. It is pertinent to point out that absence of external marks on the body of victim does not necessarily mean that rape did not take place. Small children are incapable of offering any resistance. In such a situation it would be difficult to find external marks of violence on the person of child victim.
15. We believe that whenever a child victim has been ravished by a person, it is not necessary that there should always be external marks of violence on the victim and that by itself does not negate prosecution case.
16. We believe that justification provided in the cross examination of Dr. K. Prasad (P.W.4), who examined the victim, that injury of the nature found on her person could be caused by a fall on a sharp brick does not lead us anywhere. We do not believe that parents would implicate appellant in rape case if injuries were otherwise caused by fall. There is nothing to draw such an inference. It is pertinent to point out that even appellant did not give this kind of story under Section 313 Cr.P.C.
17. Coming back to the factual evidence, it is pertinent to point out that P.W.2 Meena, (30 years old mother of the victim) was not present at the time of incident. Both husband Dilip Haldar and wife Meena have admitted that P.W.2 Meena was not present at the time of incident. She had gone to fetch water from place at distance of almost 300-400 yards. Meaning thereby that P.W. 2 can only testify about the subsequent events. Though these subsequent events do establish ancillary circumstances including medical condition of victim and thereby help us in understanding the criminal act of appellant.
18. P.W. 2 Meena has testified that when she came back, the victim was bleeding from her vaginal parts. She has admitted that victim was not raped in her presence. This question was superfluous for the simple reason that ordinarily no one would rape a victim in the presence of her family. The evidence of P.W. 1 Dilip Haldar is available for ascertaining the prosecution allegation. P.W.1 Dilip Haldar has testified that he was siting with his daughter (one and a half year old victim). His wife Meena had gone to fetch water from a distance of 300-400 yards. His neighbour, appellant Bachchu took his daughter on the pretext of playing. He heard the cries of his daughter after sometime and rushed towards a Shanty of Bachchu (appellant). He found that his daughter was crying and that blood was spilling from her private parts. On questioning, appellant Bachchu fled from the place. The complainant Dilip Haldar reported this matter to P.S. Sector 20, Noida. The victim child was medically examined. This story has been reiterated during cross examination as well. His wife Meena came back after he recovered his daughter from appellant Bachchu.
19. An intense and searching cross examination was conducted but overall this witness stood his ground. In our opinion the testimony of P.W.1 Dilip Haldar is natural, credible and reliable despite presence of minor discrepancies.
20. We have already pointed out the social background of the victim and appellant. These Bengali speaking workers in and around Noida face language barrier as well. They do pick up little bit of Hindi language but lack of knowledge of local language and their poverty creates problem for them. It is true that P.W.1 Dilip Haldar has actually not witnessed the incident of rape. But fact remains that appellant took his daughter from his lap; took her to his shanty and thereafter she was found in bloody condition. It was the cry of victim which attracted P.W.1 Dilip Haldar to the shanty of appellant. He did not explain the condition of victim either to the parents or to the police or to the trial court.
21. We cannot ignore the argument of learned A.G.A. that the injuries found on the person of this toddler were exclusively within the knowledge of appellant. Therefore, it was incumbent upon him to disclose the reasons for the injuries on the private part of the victim. Victim sustained injuries on the private parts as soon as he took victim to his shack. The appellant took the victim in his own hut, victim cried and her father immediately found injuries on her person. No explanation of these injuries was offered by the appellant. P.W.2 Meena also saw the injuries on the person of victim, therefore, her testimony is useful in establishing the subsequent events which in turn establish the prosecution allegations against the appellant.
22. Learned counsel for appellant has argued that the pathology report of vaginal swab has not been produced. He has also argued that the undergarment of victim was not taken into possession by I.O. The argument is also raised that the discrepancy between various witnesses especially in regard to the arrest of appellant, is fatal to the prosecution case. P.W.1 Dilip Haldar has said that the appellant was arrested from Cannaught Place, New Delhi while P.W. 5 investigator Kamal Singh has testified that appellant was arrested from Noida. It is true that there is some discrepancy in the prosecution case regarding the place of arrest of appellant. But the evidence of I.O. in this regard has to be given more weightage for the simple reason that there is no evidence on record to demonstrate that P.W.1 Dilip Haldar was present at the time of arrest of appellant. It appears that he received the information of arrest of appellant from other source, veracity of which cannot be tested.
23. We do believe that minor contradictions in the evidence of prosecution would not necessarily taint their evidence. These witnesses belong to very weak social background. They faced cross examination in comparatively unfamiliar language. Sometimes the atmosphere of trial court can also become intimidating to witnesses.
24. The Apex Court in Prem Singh and others Vs. State of Haryana (2010) 1 SCC (Cri) 1423 and Jamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh through Secretary (2010) 1 SCC (Cri) 372 has held that minor contradictions of prosecution evidence do not necessarily weaken the prosecution case. Minor discrepancies can be ignored. These ordinary discrepancies in fact sometimes demonstrate the simplicity of witnesses.
25. It is true that pathology report was neither obtained nor produced during trial. The mere fact that I.O. has shown callous and indifferent attitude is not sufficient to ignore the otherwise trustworthy evidence. We cannot acquit the accused merely because of this attitude. The Apex Court in Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (48) ACC 940 has held that every weakness of investigation will not necessarily result in the acquittal of accused. The Apex Court has also expressed similar view in Ram Singh @ Chhaju Vs. State of Himachal Pradesh 2010 (1) SCC (Cri) 1496. The Apex Court in its famous case Bishnudeo Poddar and others Vs. State of Bihar 2003 CRLJ 1558 has held that the fate of prosecution does not depend upon what investigator or prosecutor ought to have done. The fate depends on the evidence already on record. If the court is satisfied with the available evidence then accused cannot be acquitted merely on the ground that investigator could have investigated the case with more alacrity.
26. Learned counsel for appellant has also argued that statement of P.W. 2 Meena was recorded on 28.1.1998 i.e. after nine days of the incident. No explanation for this delay in recording of statement has been given by prosecution. Submission is that this delay in recording the statement of mother of victim under Section 161 Cr.P.C. is sufficient to reject the prosecution case. We do not agree with this contention of learned counsel for appellant. We have already noticed the very weak social and economical condition of parents of victim. The statement of father, Dilip Haldar (P.W.1) who was the main witness of the prosecution, was recorded almost on same day. P.W.2 Meena (mother) was witness of subsequent events. Therefore, the delay by I.O. would not be sufficient to discard the prosecution case. Considering the indifferent attitude of I.O., we do not believe that delay in recording the statement of P.W.2 Meena warrants the complete rejection of her testimony. The testimony of P.W.2 Meena corroborates the ancillary circumstances given by P.W.1 Dilip Haldar which in turn establishes the core of prosecution allegation. We are not inclined to reject her testimony on the ground that this statement was recorded after 8-9 days of the incident.
27. We have carefully examined all material on record. The aforesaid scrutiny of the evidence is sufficient to connect the accused appellant with the stated crime so, we feel no reason to interfere with the findings of learned trial court. Prosecution has successfully proved its case beyond reasonable doubt against accused with reliable evidence.
28. The appeal lacks merit and deserves to be dismissed as far as conviction of appellant is concerned. However, appellant has undergone considerable period in jail. He has already spent almost 19 years in jail. He appears to be sole bread earner in his family. In State of Himachal Pradesh Vs. Gian Chand AIR 2001 SC 2075, the Apex Court while dealing with a case involving rape committed by a close relative on a minor, awarded the sentence of rigorous imprisonment for a period of ten years along with a fine.
29. In another case of Dildar Singh Vs. State AIR 2006 SC 3084 wherein a girl of sixteen years was raped by a teacher, the Apex Court upheld the decision of High Court and awarded the sentences of seven years rigorous imprisonment. Further in the case of State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny AIR 2017 SC 835, the Apex Court awarded twelve years rigorous imprisonment under Section 376 (2) (f) IPC along with fine of Rs.50,000/-.
30. Even Section 376 IPC implies that this Court can award any sentence under Section 376 (1) IPC provided the minimum sentence is not less than 7 years. Considering the pitiable condition of appellant, we believe the sentence of 19 years would meet the ends of justice.
31. Accordingly, while upholding the judgment on conviction, the order of learned trial court on sentence is modified to the extent of reducing the sentence imposed upon the appellant from life imprisonment to imprisonment of 19 years together with fine as imposed upon appellant.
32. The appeal is decided, accordingly.
33. Let a copy of this order be sent to concerned Court through Sessions Judge, Gautam Budha Nagar for compliance within ten days. The concerned court will report the compliance to this Court within a month thereafter.
Order Date :- 31.05.2017