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Vishwa Nath @ Pujari vs State Of U.P. on 20 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Reserved

Case :- CRIMINAL APPEAL No. – 561 of 1998

Appellant :- Vishwa Nath @ Pujari

Respondent :- State Of U.P.

Counsel for Appellant :- Sulabh Srivastava,Kirti Prakash Singh,Rajeev Kumar Mishra Rudra

Counsel for Respondent :- Government Advocate

Hon’ble Virendra Kumar-II,J.

1. Heard Mr. Kirti Prakash Singh, learned amicus curiae for the appellant and Mr. Masood Ali ‘Mashu’, learned A.G.A. for the State.

2. This appeal has been preferred assailing impugned judgment and order dated 27.8.1998 passed by learned Additional Sessions Judge-V Gonda in Sessions Trial No. 422 of 1997. The appellant has been convicted vide impugned judgment and order for offence punishable under Section 376 I.P.C. and sentenced to undergo seven years rigorous imprisonment.

3. It is pleaded in grounds of appeal that trial court has ignored the material evidence and facts available on face of record. It has not applied its judicious mind and totally failed to appreciate evidence of PW-1, PW-2, PW-3 and PW-4 in correct perspective. It has further pleaded that impugned judgment and order under challenge is absolutely contrary to the fundamental principles of natural justice and it is perverse in law and facts both. It has been mentioned in grounds of appeal that no independent witness was examined on behalf of prosecution to support the evidence of interested witnesses. The prosecution story does not accord with any probabilities and it is tainted. It is contended that eyewitness, namely, Ram Kripal has turned hostile and another eyewitness Jag Prasad has not been produced by the prosecution during course of trial. The trial court has not analysed and appreciated injury report of the prosecutrix properly. Likewise, medical examination of the appellant was not conducted by any doctor to assess that at the time of incident, the appellant was matured for intercourse or not. The scribe of F.I.R. was not examined before the trial court.

4. On the basis of these grounds, the impugned judgment and order has been assailed and it has prayed that it be set aside.

5. During pendency of this appeal, appellant moved application under Section 7-A of Juvenile Justice Care and Protection Act, 2000. This Court vide order dated 14.11.2013 allowed this application and directed the Juvenile Justice Board to determine the age of the appellant on the date of incident. The District Judge, Gonda has informed vide letter dated 23.7.2016 that appellant was aged 21 years 2 months and 20 days on the date of incident and he was not juvenile as claimed by him and provided order dated 6.7.2016 passed by Juvenile Justice Board, Gonda.

6. I have perused record of sessions trial no. 422 of 1997 (State Versus Vishwanath alias Pujari) arising out of Case Crime No. 158 of 1997 under Section 376 I.P.C., Police Station Kudiya, District Gonda.

7. Complainant Ram Rang submitted a written report Ex. Ka-2 on 26.9.1997 before the S.H.O. of Police Station Kudiya, District Gonda. On the basis of this written report, Crime No. 158 of 1997 under Section 376 I.P.C. was registered on 26.9.1997 at 17:25 hours vide check F.I.R. Ex. Ka-3, G.D. Ex. Ka-4 of registration of this crime was also prepared.

8. As per facts narrated in written report, complainant informed that on 26.9.1997 at about 3:00 p.m. his daughter aged 6 years was playing. Appellant Vishwanath alias Pujari lured her on pretext of giving “bali of maize”. He brought her in his “Madha/Charani” and committed rape with her. The victim raised alarm, witnesses Jag Prasad and Ram Kripal reached at place of occurrence, then accused fled away leaving the victim.

9. During course of investigation, Investigating Officer prepared recovery memo Ex. Ka-5 for taking into possession frock of the victim. He also inspected the place of occurrence and prepared site plan Ex. 6-A. The victim was medically examined by the concerned doctors, who prepared medical examination report Ex. Ka-1 and age determination report Ex. Ka-6. The age of the victim was opined seven years on the date of her medical examination on 27.9.1997, when she was medically examined by the doctor.

10. After conclusion of investigation, charge sheet Ex. Ka-7 was submitted by the Investigating Officer.

11. After committal of this case on 18.12.1997, the Additional Sessions Judge, VII Gonda framed charge against appellant for offence punishable under Section 376 I.P.C. The appellant denied the charge and claimed to be tried.

12. PW-1 Dr. Gauri Malik, PW-2 complainant Ram Rang, PW-3 victim, PW-4 Smt. Kanchana Devi, PW-5 Ram Kripal, PW-6 Constable Atma Lal Srivastava, PW-7 Dr. M.B. Singh, PW-8 S.I. Vyas Tiwari were examined on behalf of the prosecution.

These witnesses proved the above-mentioned documents.

13. The trial court recorded statement of accused under Section 313 Cr.P.C. The appellant has denied the prosecution version and he has stated that he belongs to scheduled caste and he is agricultural labourer. He denied to perform “Begar”, therefore he has falsely been implicated in the crime.

14. PW-2 Complainant, PW-3 victim and PW-4 Victim’s mother have been produced on behalf of the prosecution as witnesses of fact.

15. Learned counsel for appellant has argued that no independent witness of the incident has been produced on behalf of the prosecution. PW-5 Ram Kripal was the eyewitness as per prosecution version narrated in the F.I.R., but he has not supported the prosecution case. Another eyewitness mentioned in the F.I.R. Jag Prasad has not been examined by the prosecution.

16. Learned trial court has considered this argument putforth by learned defence counsel and recorded finding that the victim was aged five to seven years and she has corroborated the prosecution version. The evidence of victim was found reliable trustworthy and acceptable. There was no need for looking for corroboration of evidence. The solitary evidence of victim can be relied upon.

17. It is relevant to mention here that during course of investigation, statement of victim was recorded on 30.9.1997, under Section 164 Cr.P.C., before the concerned Magistrate. She was found capable for adducing evidence. She answered correctly the questions put forth by the concerned Magistrate that blood was oozing from her private part due to sexual intercourse committed by the appellant. She has disclosed time of incident 3:00 – 4:00 p.m.

18. The victim during her examination before the trial court has stated as PW-3, corroborating the facts narrated by the complainant PW-2 in his written report Ex. Ka-2.

19. I have perused statement of PW-3 victim. She has stated that she knows appellant Pujari, who committed rape (Murahi) in his house on Chhappar. He lured her for giving “bali of maize”. Her private part was lacerated after rape and blood was oozing from her private part, which was soaked in her clothes. She has further stated in her examination in chief that she apprised her mother about incident at her house. Her father could not return back on this point of time.

20. During her cross examination, PW-3 victim has disclosed this fact that on the date of incident, she was playing with one girl and two boys below tree of Neem. She indicated the place of her frock, where blood oozed from her private part, soaked on her frock. She has apprised the Court that accused appellant washed out her frock without using soap at his house. She has also stated in her cross-examination that the Investigating Officer interrogated her.

21. Learned counsel for appellant has submitted that PW-3 victim has accepted in her cross-examination that she adduced her evidence as advised by the government counsel. On the other hand, questions were putforth during her cross-examination. She replied that she does not know how many days are in a week or month. She does not know sun or moon from which side rise. She does not know name of her grand father and uncle. She is unable to count up to 10. Therefore she is unable to disclose this fact that when appellant committed rape with her. It is further submitted that prosecution has not examined the girl and two boys with whom she was playing on the date of incident.

22. It is pertinent to mention here that PW-3 victim has narrated the substantial facts and circumstances in which the accused appellant committed rape with her. She has specifically stated that accused appellant washed out the blood stains of her frock at his house and tried to disappear these bloodstains from her frock. She has specifically stated that her private part was lacerated and blood was oozing from it and soaked in her frock.

23. The Presiding Officer of the trial court has appended a certificate before recording statement of PW-3 victim. Some questions were put forth before the victim. She was able to reply these questions. She was only unable to understand the oath taken before the Court. The age of the victim at the point of time of recording of statement before the trial court was 5-6 years.

24. As far as PW-3 victim does not know the directions, north, south, west, east or she is unable to disclose the days of week or month or time of watch, considering the age of the victim, this cross examination does not help the appellant in any away, because the victim was illiterate and rustic witness of rural atmosphere. No question was put-forth before the victim during her cross examination that she was going to school or not. Therefore, it may be possible that facts elicited during course of her cross-examination were not known to her, due to her being illiterate. The victim has adduced her evidence on substantial facts and circumstances of the incident committed by the appellant with her. Her evidence is reliable, trustworthy and inspires confidence. It cannot be discarded.

25. PW-8 Investigating Officer has accepted during cross examination that he had not interrogated the children with whom she was playing . Therefore, Investigating Officer has committed omission and fault during course of investigation due to which girl and two boys, who were playing with the victim could not be examined. This fault of the investigation cannot extend any benefit to the accused appellant. Therefore, argument of the learned counsel for appellant in this regard is not acceptable.

26. I have also perused statement of PW-4 Smt. Kanchana Devi, who is mother of the victim. She has stated that her daughter (victim) was aged four years on the date of incident, which occurred seven months ago. Her daughter was playing near her house and below the tree existing there. She has clarified this fact that victim came about 3:00 p.m. she was weeping and apprised her with lisp that appellant Vishwanath alias Pujari committed rape with her. She also apprised her that accused appellant lured her on the pretext to give ‘bali of maize’.

27. PW-4 saw that frock of victim soaked with blood. She has explained the word “Murahi” used in local language for sexual intercourse. She has stated that when her husband came back at home, she and her daughter apprised him. The victim also apprised her that appellant Pujari washed out her frock. She has also apprised her that accused appellant brought her in Charani from the place where the victim was playing below the tree. This tree was situated near Charani.

28. Learned counsel for appellant has submitted that PW-4 is not the eyewitness of the incident of rape committed by accused appellant. Therefore, the evidence of PW-4 is not legally admissible.

29. Section 6 of the Evidence Act and case law on res geste is relevant, which is as follows:

Section 6 of the Indian Evidence Act provides as under:-

“6. Relevancy of facts forming part of same transaction.–Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”

30. In the case of Gentela Vijayavardhan Rao v. State of A.P., reported in (1996) 6 SCC 241, Hon’ble Apex Court in paragraph no. 15 has held as under:-

15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586] a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. [(1952) 2 All ER 447] thus:

“The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.”

The correct legal position stated above needs no further elucidation.

31. In the case of Sukhar v. State of U.P. reported in (1999) 9 SCC 507 Hon’ble the Apex Court in paragraph nos. 6 and 10 has held as under:

6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore’s Evidence Act reads thus:

“Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.”

10. Applying the ratio of the aforesaid two cases to the evidence of PW 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms Goswami, learned counsel appearing for the appellant.

32. In Rattan Singh v. State of H.P. reported in 1997 (4) SCC 161, Hon’ble Apex Court has examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and has held in paragraph no. 16 as under:

16. Even apart from Section 32(1) of the Evidence Act, the aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration ”A’ to Section 6 makes it clear. It reads thus:

“(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.”

(emphasis supplied)

Here the act of the assailant intruding into the courtyard during dead of the night, victim’s identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act.

33. On the basis of above-mentioned provisions of Evidence Act and case law, the evidence of PW-4 is admissible under Section 6 of the Evidence Act on the principle of res geste. The victim immediately after the incident has apprised her mother (PW-4) about the incident committed by the appellant. She has observed that frock of the victim was soaked with blood and the victim apprised her that accused appellant tried to disappear bloodstains from the frock by washing out these bloodstains. There is no substance in the argument of learned counsel for appellant that the evidence of PW-4 is not admissible in evidence.

34. PW-4, during her cross examination, has stated that she apprised the Investigating Officer about word “Murahi” used by local residents as a synonymous of word ‘rape’. She has refuted the suggestion that the victim did not apprise her about the incident. She has specifically stated that she did not apprise the Investigating Officer that she washed out bloodstains available on frock of the victim. On the other hand, she saw one bloodstain on the frock of the victim. Another bloodstains were washed out by the appellant, which were available on frock.

35. PW-4 has disclosed 7 -8 paces distance in between her house and house of accused. The appellant is Pattidar of PW-4 and he was having visiting terms. She has also clarified that the appellant was residing in his house with his mother and sister only. His father has expired and brother and sister-in-law does not reside with him. PW-4 has also stated in her cross- examination that she made a complaint to mother of appellant about the incident, but she paid no heed to her complaint. She has clarified that at the point of time of incident, accused appellant was alone and other family members were not present there. The victim was playing below the tree of Neem. Her husband went to bring grocery articles. She has refuted the suggestion that accused has falsely been implicated in this crime. and the victim sustained injury on her private part elsewhere. It is also refuted by her that this case was registered on the advise of Village Head and with consultation of police personnel.

36. PW-2 complainant has proved his written report Ex. Ka-2 and has stated in his examination in chief that the victim apprised him that accused appellant lured her and committed (Chhinrai) rape with her. He has clarified this fact that he went to bring grocery articles from Bangai seven months ago. He returned back at 2:30 to 3:00 p.m. and his wife apprised that the victim was playing below the tree, from where, the accused appellant brought her on the pretext to give “bali of maize”. PW-2 complainant has also stated that blood was soaked on the clothes of the victim and this incident occurred at about 3:00 p.m.

37. Learned counsel for appellant has submitted that PW-2 complainant is not eye-witness of the incident, therefore, his evidence is hearsay and not legally admissible.

38. During his cross-examination, PW-2 complainant has clarified that when he reached at his house, frock of the victim was soaked with blood. He has also clarified that tree of Neem was situated in the southern side from the house of accused appellant where victim was playing with children. He has mentioned that Madha/Charani of accused appellant is situated in the eastern side of the house of accused.

39. PW-2 has stated that the victim apprised him that accused appellant committed rape with her in Madha/Charani. He has disclosed this fact that witness Jag Prasad is his Pattidar. He is of caste Kurmi and Ram Kripal is of caste Khatik. During his cross-examination, PW-2 complainant has specifically stated that he got written his report by somebody in the market. The Investigating Officer also interrogated him. He has refuted the suggestion that he had lodged F.I.R. with consultation and deliberation of police personnel and enemies of the accused appellant and he has falsely been implicated in this case.

40. Regarding credibility of evidence of child witness, Hon’ble the Apex Court in the case of Golla Yelugu Govindu v. State of A.P. reported in (2008) 16 SCC 769 in paragraph no. 11 has held as under:-

11. “6. The Evidence Act, 1872 (in short ”the Evidence Act’) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease–whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States [40 L Ed 244 : 159 US 523 (1895)] . The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (Suryanarayana v. State of Karnataka [(2001) 9 SCC 129 : 2002 SCC (Cri) 413 : (2001) 1 Supreme 1] .)

7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows: (SCC p. 343, para 5)

”5. … A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored’.

The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that its conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.” [Ed.: As observed in Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 at pp. 67-68, paras 6-7.]

41. Hon’ble the Apex Court in the case of Bhagwan Singh and others Vs. State of M.P. reported in 2003 (3) SCC 21 has held in paragraph no. 19 as under:-

19.The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. (See Panchhi v. State of U.P.[(1998) 7 SCC 177)

In the case of State of Maharashtra Vs. Bharat Fakira Dhiwar reported in (2002) 1 SCC 622, Hon’ble Apex Court in paragraph nos. 19 and 20 has held as under:-

19. As stated above, the trial court has found the evidence of the child witnesses to be reliable and truthful. We also find the evidence to be reliable and truthful. There has been searching cross-examination and both the child witnesses have stood the test of cross-examination. The cross-examiner has not been able to make any dent in the testimony of these two child witnesses. We, therefore, see no reason to disbelieve the child witnesses.

20. Even otherwise, their evidence is supported by a number of other circumstances which have been proved by the prosecution. These two child witnesses had seen the respondent going beyond the canal. The dead body was found beyond the canal. They had seen the respondent carrying a jute bag. Next to the dead body a jute bag had been found. It was stained with human blood of Group B. In the house of the respondent the ground had been found to be freshly covered with cow dung. On the wall of the house, on a newspaper and a quilt found in the house, there were bloodstains. The bloodstains on the newspaper were of Group B. At the instance of the respondent the grinding stone was recovered from tall grass. That grinding stone also contained blood of Group B. At the instance of the respondent his full pants and underwear were recovered from the sugarcane field where he had buried them. They also contained the blood of Group B. All these circumstances clearly and unerringly pointed to the guilt of the respondent. These circumstances strongly lend support to the evidence of the two child witnesses. The High Court has wrongly ignored and/or brushed aside these circumstances.

42. On the point of rustic witness, I would like to quote the pronouncement of Hon’ble Apex Court’s judgment in the case of State of U.P. Versus Krishna Master reported in [(2010) 12 SCC 324]. In paragraph nos.15 and 17 of the said judgment Hon’ble Apex Court has observed as under:-

“15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case.”

43. This point was also considered by Hon’ble the Apex Court in its earlier judgment in the case of State of Punjab Vs. Hakim Singh reported in [2005 (7) SCC 408], wherein Hon’ble the Apex Court has observed in para 7 as under:-

“We fail to understand the manner in which the testimony of this witness has been appreciated by the High Court. Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle.”

44. The Hon’ble Supreme Court in AIR 1990 SC 538: State of Haryana V. Prem Chand and others has observed in para 11 as under:

11. At this juncture, we would like to point put that the very confirmation of the conviction accepting the sole testimony of the victim Suman Rani rejecting the arguments of the defence counsel is itself a clear indication that this Court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment under Section 376 I.P.C. We would like to state with all emphasis that such factors are wholly alien to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for imposing the sub-minimum sentence with the aid of the proviso to Section 376(2) of the I.P.C. In fact, we have expressed our views in the judgment itself stating “No doubt an offence of this nature has to be viewed very seriously and has to be dealt with condign punishment.

45. Reference on this point may be made to the pronouncement of Hon’ble the Apex Court in the case of Govindaraju Vs. State of Karnataka reported in (2009) 14 SCC 236 wherein Hon’ble the Apex Court in paragraph no. 27 has observed as under:-

“27. The High Court has appreciated the evidence very deeply and in our opinion, the Sessions Judge had gravely erred in not accepting the evidence of this witness without any justifiable reason. It is a basic principle that the evidence of witness has to be appreciated as a whole, when the evidence of an ordinary witness, who is not much educated and comes from a poor strata of society not having the advantage of education. The Court has to keep in mind all these aspects. The witness is not expected to remember every small thing, more particularly when he faces the shock of the untimely death of his near relative.”

46. Hon’ble the Apex Court in the case of State of Uttar Pradesh Vs. Krishna Master and others (supra) has held in paragraph no. 23 and 24 as under:-

“23. …………………… A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime.

24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness.”

47. Hon’ble the Apex Court in the case of Sukhwinder Singh Vs. State of Punjab reported in (2014) 12 SCC 490 has observed in paragraph no. 13 as under:-

“13. ………………………………… They are rustic witnesses. Their evidence must be read bearing their simple background in mind. PW 2 Labh Singh had lost his daughter. Besides, they were deposing in 1994, almost three years after the incident. Hence, allowance must be made for minor discrepancies, if any, in their evidence.”

48. PW-8 Investigating Officer has proved site plan Ex. Ka-6 and has stated that the statement of victim was recorded under Section 164 Cr.P.C., which was copied by him in the case diary and frock of the victim was taken into possession by Constable Moharir and recovery memo was prepared by him. PW-8 during cross-examination, has accepted this fact that Smt. Kanchana Devi apprised him about the conduct of appellant by committing “Murahi” with the victim. He has specifically stated that PW-4 Smt. Kanchana Devi did not give any statement that bloodstains available on frock were washed out by her.

49. I have perused site plan prepared by Investigating Officer Ex. Ka-6A in which Madha/Charani, the place of incident has been marked by word (A) and tree of Neem has been mentioned from, where the accused appellant brought the victim by luring her in his Madha/Charani, where he committed rape with the victim. Therefore, the accused appellant was having opportunity for bringing her at place of occurrence.

50. I have also perused recovery memo Ex. Ka-5, which has been proved by witness. PW-6 Constable Atma Lal Srivastava. During his examination-in-chief, this witness has stated that the complainant, his wife Kanchana Devi and the victim aged six years came at police station at the time of registration of the crime vide check F.I.R. Ex. Ka-3, G.D. of registration of crime, Ex. Ka-4. He has specifically stated that the victim worn frock and it was having bloodstains, which were apparent, even after washing it out. He prepared recovery memo Ex. Ka-5 after taking into possession this frock. PW-6 has also proved the victim’s frock as material Ex. 1.

51. No cross-examination of PW-6 was conducted on behalf of the appellant during course of trial. Therefore, prosecution has proved that bloodstains were apparent on the frock, even after it was washed out by the appellant. PW-3 victim and PW-4 her mother has also proved this fact that accused appellant washed out the bloodstains available on frock of the victim at his house, even then some bloodstains were visible to PW-6 also, when he registered check F.I.R. Ex. Ka-3, G.D. Ex. Ka-4.

52. Learned counsel for appellant has argued that this frock material Ex.-1 was not sent by PW-8 Investigating Officer for chemical analysis and no report of forensic science is available on record.

53. The following case law is relevant regarding fault committed by the Investigating Officer during the course of investigation.

54. In the case of Jagdish Narain Anr vs State Of U.P reported in JT 1996 (3) 89, Hon’ble Apex Court in paragraph no. 9 has held as under:-

9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former’s evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-Judge Bench of this Court in Tori Singh v.State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580]. In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention this Court observed, inter alia:

“… the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation.”

55. In the case of State of U.P vs Babu And Ors reported in 2003 (11) SCC 280, Hon’ble Supreme Court in paragraph no. 5 has held as under:-

5. A bare perusal of the High Court’s Judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs. 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location gaslight in the site plan was fatal. This Court in Shakti Patra and another v. State of West Bengal 1981CriLJ645 held that where prosecution witness testified that he had identified the accused in the light of the torch, held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat 1983 CriLJ 1049. It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr. 1998 CriLJ 2034 regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigation Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short ‘Cr. P.C.’). The position is no different in case of site plan.”

56. PW-8 Investigating Officer during his cross examination has refuted this suggestion that he had arrested the accused appellant on 26.9.1997 and his fabricated arrest was shown on 27.9.1997. He has accepted that accused appellant was not medically examined nor his clothes were taken into possession and sent for chemical examination. Likewise he did not send blood soaked clothes. Semen/sperm available on these clothes, were not sent for chemical analysis to forensic laboratory. He has stated on his own that he had not sent these clothes for chemical analysis, because the clothes of the victim had been washed out. He has also accepted that only reference slip was sent to the concerned doctor to medically examine the victim and separate letter was not sent to analyze dried blood or sperms available on the body of the victim.

57. PW-8 has also refuted the suggestion that the victim sustained injuries, while she was playing with the children.

58. Therefore, it is omission and fault of PW-8 Investigating Officer that frock soaked with blood was not sent by him for chemical analysis to Forensic Science Laboratory. This fact cannot extend any benefit to the accused appellant. Moreover, the accused appellant has not adduced any defence evidence that the victim sustained injuries on her private part, while she was playing with children or she sustained this injury elsewhere in any other circumstance. On the other hand PW-3 and 4 has proved this fact that accused appellant had committed rape with the victim on the date of incident.

59. The following case law is relevant on the point of omissions and fault committed by the Investigating Officer:

60. In the case of Prithvi (Minor) v. Mam Raj, reported in (2004) 13 SCC 2729 the Hon’ble Apex Court has observed in para 17 and 19 as under:

17. A further reason for disbelieving the evidence of Prithvi is that, while Prithvi stated that he could see the assailants because there was light on the spot coming from a bulb fitted in an electric pole near the chakki of Birbal (which was situated about fifteen steps from the place of occurrence) the investigating officer (PW 36) when cross-examined said that he did not remember anything about it nor did he include any electric pole in his site plan. Assuming that this was faulty investigation by the investigating officer, it could hardly be a ground for rejection of the testimony of Prithvi which had a ring of truth in it. We may recount here the observation of this Court in Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] , SCC at p. 64, para 8, that:

“The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also, defective investigation by itself cannot be made a ground for acquitting the accused.”

19. The evidence of Sona (PW 32) to the effect that, he awoke because of barking of dogs and saw four persons running by and when he flashed the torch, he noticed three of the respondents and a fourth person whom he could not recognise, is also disbelieved by the High Court on the ground that the place where Sona was sleeping was not shown in the site plan. The High Court also attached importance to the fact that the investigating officer had not put the date on which the statement of this witness was taken, although the investigating officer explained that he had forgotten to mention the date. The High Court assumes that on the date of the incident itself, the police knew the names of the assailants; therefrom, it deduces that the fact that they were not arrested till 30-8-1993 makes the statement of the witness unreliable. This, to say the least, is another piece of perverse reasoning.

61. In the case of Raghuraj Singh and Ors. Vs State of U.P reported in 1996(20) ACR(R) 409 a Division Bench of this Court at Allahabad in paragraph no. 12 and 19 has held as under:-

12.the learned Counsel for the Appellants, pointed out to the defects of the prosecution and investigation done in the case. He submitted that the blood-stained earth was not sent for opinion of the Chemical Analyst which admittedly was taken by the I.O. Similarly, the blood-stained knife said to have been left at the place of occurrence was recovered by the I.O. It was neither sent for opinion by the Chemical Examiner nor the knife was shown to the witness P.W. 4 Dr. Vijal Pal Singh who had conducted the post-mortem examination. The guns of Raghunath Singh and Raghu Raj Singh, accused persons, were not seized during the investigation nor the empty cartridges recovered at the place of incident was sent to the Ballistic Expert to ascertain that the empty cartridges recovered were fired from the gun of the accused Raghuraj Singh and Raghunath Singh. He also pointed out that pair of shoes of the accused person, as stated by the witness, was not proved to be of the present Appellants or Raghunath Singh, co-accused deceased. It was necessary for the prosecution to have proved that the shoes recovered at the place belong to some of the accused persons which could have fixed clinchingly that a particular accused person was present at the time when the incident took place. He also submitted that no application was moved by the prosecution to ask any of the accused persons to wear the shoe to show that they belong to him.

19. The learned Counsel for the Appellants submitted that the investigation in this case was defective. The points of defect in the investigation are narrated in the earlier part of the judgment itself. He submitted that on account of the non-seizure of the guns of the accused persons, said to have been used in the commission of the offence, not getting the opinion of the Ballistic Expert in respect to the cartridges found at the spot which could have been obtained from the Ballistic Expert after getting the opinion about the guns of the accused persons had it been seized. The learned Counsel further submitted that the blood-stained earth recovered from the place of occurrence was not sent to the Serologist for his opinion that it was the human blood. The failure of the prosecution to adduce evidence and investigate on the aforementioned points, in our opinion, does not constitute any ground for disbelieving the eye-witnesses who are not simply eye-witnesses but also injured witnesses. Had the prosecution examined the blood-stained earth and proved it to be stained with human blood by the Serologist and getting an opinion from the Ballistic Expert to show that the empty cartridges recovered at the place were used and fired with guns of the accused persons, had the gun of the accused Appellants seized and recovered. Had the prosecution investigated the case and obtained Ballistic Expert opinion and opinion of the Serologist that the incident did take place at the place as set up by the prosecution. If that evidence would have been procured and adduced in the case, that would have further strengthened the prosecution case. In the absence of those evidence, the prosecution case is proved by other injured witnesses and the evidence of the Doctor who conducted the postmortem examination and he proved the injuries of the injured witnesses. Their presence have been proved at the place of incident at the relevant time. The omission of non-investigation of the case on the lines suggested would not sufficient to discard the prosecution evidence and the witnesses.

62. In the case of Naurangi Vs. State of U.P., reported in 1996 CrLJ 81, a Division Bench of this Court at Allahabad in paras-7,8 and 16 has held as under:

7. We have heard the learned counsel for the appellant and the learned Additional Govt. Advocate and in our opinion, there is no force in this appeal. The motive of the murder has been clearly established by the prosecution. The prosecution witnesses have stated that the accused had encroached upon a piece of land which was in the possession of the complainant. The appellant had dug a foundation and were, on the date of the incident, putting layers of bricks therein. It is further stated by the prosecution witnesses that, on being asked to desist from such encroachment, the appellant fired at Pati Ram and his nephew Maharaj Singh. The investigating Officer, who visited the site, found that foundation had been dug at the place. The layers of bricks had been put in and some bricks were also lying on the site. It appears from the statements of the prosecution witnesses that the appellant did not relish this interference by Maharaj Singh and after fetching the gun from the house, he fired at Pati Ram who was coming towards the site on hearing the shouts of Maharaj Singh and also hit Maharaj Singh who, by then, had managed to get his father’s licensed gun and had come out in the open space.

8. So as far the actual incident is concerned the prosecution has examined four eye witnesses, namely, PW 1 Mani Ram, PW 5 Maharaj Singh, PW 6 Chob Singh and PW 7 Mohar Singh. All these witnesses made substantially consistent in regard to the incident and place of occurrence. According to PW 1 Mani Ram he was working at the ‘Rabat’ along with his brother Pati Ram deceased, on 14-10-1979 at about 12 noon when he heard the shouts of Maharaj Singh and other children. On hearing these shouts he along with Pati Ram rushed to the place from where the shouts were coming. When he reached the field of Madho Singh the appellant came with a gun and fired from the place where the Abadi of Suraj Pal, Chak road and field of Madho Singh meet and that Naurangi Lal fired twice hitting Pati Ram as a result of which he fell down. This statement is corroborated by PW 6 Chob Singh and PW 7 Mohar Singh. The Investigating Officer also found blood stains at that place where Pati Ram fell down. There appears to be no sufficient reason for doubting the statements made by these witnesses.

16 . We proceed to do so. We have already indicated above that the eye witnesses namely PW 1 Mani Ram PW 6 Chob Singh and PW 7 Mohar Singh have made substantially consistent statement in regard to the incident and place of occurrence. PW 5, Maharaj Singh is not an eye witness in respect of deceased Patiram and in this regard he has merely stated that he saw his dead body lying in the open field. The incident took place in an open field in broad day light at about 12 noon. The Investigating Officer found blood at the place where Patiram was shot. Merely because the blood stained earth was not sent for chemical examination, the prosecution version cannot be said to be doubtful (See Ramesh Chandra v. State, : 1992CriLJ3584 . The medical evidence, namely, the post mortem report of deceased Patiram and injury report of Maharaj Singh supports the prosecution version.

63. In the case of Surendra Paswan Vs. State of Jharkhand, reported in 2004(48) ACC 279, 290 SC, the Hon’ble Apex Court in paras-4, 8 and 11 has observed as under:

4. In response, learned counsel for the State submitted, that three eye-witnesses specifically deposed regarding the place of occurrence, the manner of assault and gave detailed description of the entire scenario. The trial Court and the High Court have analysed their evidence and found to be credible, cogent and trustworthy. That being the position, there is no scope for interference in this appeal. Further, there was a confusion between bullet and pellet which has been clarified by the investigating officer. Merely because the bullet which was extracted by the doctor was not sent for chemical examination, it would not be a factor which would outweigh the testimonial worth of the eye-witnesses. The injuries have not been established by the accused to have been sustained in course of the incident as per the prosecution version. There was not even any suggestion about the defence version to any of the prosecution witnesses and for the first time while giving statement under Section 313 Cr.P.C. the plea has been taken.

8. So far as the non seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye-witnesses. The investigating officer did not find presence of blood on the cot. The trial Court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over to the earth.

11. So far as the confusion relating to bullet and pellet is concerned, the same has been clarified by the doctor’s evidence. In his examination the doctor (PW-3) has categorically stated that there was only one injury on the body of the deceased and no other injury was found anywhere on the person of the deceased. Therefore, the question of the deceased having received any injury by a pellet stated to have been recovered by the investigating officer is not established. The investigating officer has clarified that the bullet embodied was given to the police officials by the doctor which was initially not produced as it was in the Malkhana but subsequently the witness was recalled and it was produced in Court.

64. In the case of Sewak Vs. State of U.P. reported in 1995 ALJ 987 Allahabad, Allahabad High Court has held in paragraph no. 8 and 11 as under:

8. It has been contended on behalf of the appellant that the rape was not Committed by the appellant on the prosecutrix but that it was one Hanif who was working in the Forest Department who had actually committed rape on the prosecutrix but in order to save himself and his service, he maneuvered to get involved the appellant for the commission of rape. It has also been urged on behalf of the appellant that the manner in which the rape is said to have been committed by the appellant appears much too improbable, inasmuch as the appellant would not succeed in accomplishing the act with one of his hands placed on the mouth of the prosecutrix. It was further contended that the medical evidence does not support the commission of rape on the prosecutrix and that the spots of semen found on the Petticoat and Dhotti of the prosecutrix were not sent for chemical examination. The learned counsel for the accused-appellant, therefore, strenuously contended that the prosecution has not succeeded in establishing its case against the appellant beyond reasonable doubt. Sentence of fine imposed on the appellant, was also said to be severe.

11. It has been further contended that the stains of semen which are said to have been found on the petticoat of the prosecutrix were not sent for chemical examination. The learned Additional Sessions Judge has rightly commented on this lapse of the investigating agency and has further rightly observed that this lapse of the investigating agency would not furnish the sole ground for rejecting the prosecution case. I agree with the learned Additional Sessions Judge on this score.

65. Therefore, argument of learned counsel for appellant is not acceptable in this regard.

66. As far as, it is argued on behalf of accused appellant that PW-5 Ram Kripal has turned hostile and witness Jag Prasad has not been examined, whereas these witnesses were mentioned in the F.I.R. It is also argued that no other independent witness was examined on behalf of the prosecution.

67. It is relevant to mention here that PW-5 was confronted with his statement recorded under Section 161 Cr.P.C. during his cross-examination, which was denied by him. He has refuted the suggestion that he was suppressing the real facts to absolve the accused. He has accepted this fact in his examination-in- chief that he was present in his house at about 3:00 p.m. (seven months’ ago) when incident was committed by the appellant. PW-5 was mentioned as eye-witness in the F.I.R. lodged by PW-2. During his examination before the trial court, he has not supported the prosecution version and denied his statement recorded under Section 161 Cr.P.C.

68. Witness Jag Prasad and eye-witness PW-5 has supported the prosecution version during course of investigation. PW-5 has turned hostile and it may be possible that due to omission committed by the prosecuting officer, Jag Prasad could not be summoned and examined during course of trial, because no summon issued against him is available on record for his examination during course of trial.

69. Summons of PW-2 complainant, PW-3 the victim and PW-4 Smt. Kanchana Devi, mother of victim and PW-5 Ram Kripal were issued only. Witness Ambika Prasad was summoned by the prosecution on the point of preparation of recovery memo in his presence, but he did not turn up during course of trial. Therefore, no benefit can be extended to the appellant on the basis of omission or fault of the prosecuting officer. Ambika Prasad was personally served, even then he did not turn up before the trial court. It may be possible that PW-5 Ram Kripal in support of accused appellant had not adduced his evidence according to his statement recorded under Section 161 Cr.P.C.

70. The following case law is relevant on the point of relative, interested and independent witness:-

71. In the case of Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195, Hon’ble Supreme Court has held as under:

24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v.State of Punjab [Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26)

“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”

25. Similarly, in Piara Singh v. State of Punjab [Piara Singh v. State of Punjab, (1977) 4 SCC 452 : 1977 SCC (Cri) 614] , this Court held: (SCC p. 455, para 4)

“4. … It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence.”

26. In Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] , a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13)

“13. … it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”

27. Again, in Ramashish Rai v. Jagdish Singh [Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498 : 2005 SCC (Cri) 1611] , the following observations were made by this Court: (SCC p. 501, para 7)

“7. … The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.”

28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar[Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] , State of U.P. v.Jagdeo [State of U.P. v. Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351] , Bhagaloo Lodh v. State of U.P.[Bhagaloo Lodh v. State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813] , Dahari v. State of U.P. [Dahari v. State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] , Raju v. State of T.N. [Raju v. State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184], Gangabhavani v. Rayapati Venkat Reddy[Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] and Jodhan v. State of M.P. [Jodhan v. State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275] )

50. The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12)

“12. … It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits.”

51. Similarly, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.

72. In the case of Vijendra Singh v. State of U.P., (2017) 11 SCC 129, Hon’ble Supreme Court has observed as follows:

30. It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.

31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13)

“[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”

It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v.State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.

73. In the case of Juman v. State of Bihar, (2017) 11 SCC 85, Hon’ble Supreme Court has held as under:

21. We have seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recording of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eyewitness, if the same inspires confidence. Moreover, prosecution case has been proved by the testimony of the eyewitness, since corroborated by the other witnesses of the occurrence. We are constrained to reject the submissions made on behalf of the appellants.

74. Hon’ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para16 has observed as under:-

“16. …… The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected.”

75. Therefore, evidence of PW-2 complainant, father of the victim, PW-3 the victim and PW-4 Smt. Kanchana Devi, mother of the victim is available against the appellant. Their evidence is reliable, credible and inspires confidence and is not liable to be discarded. The argument of learned counsel for appellant that any other witness was not produced on behalf of the prosecution and PW-5 has turned hostile or witness Jag Prasad mentioned in F.I.R. has not been produced by the prosecution is to no avail. The trial court has recorded findings based on evidence available on record and these findings cannot be termed as perverse or against law.

76. Learned counsel for appellant has lastly argued that the medical evidence of PW-1 Dr. Gauri Malik and PW-7 Dr. M.B. Singh, Dental Surgeon did not support the prosecution version regarding the fact that accused appellant committed rape with minor victim. The conduct of accused appellant may be covered by the provisions of Section 354 I.P.C. that is molestation only. According to medical opinion given by PW-1, it cannot be held that accused appellant had raped with the minor.

77. I have perused statement of PW-1 Dr. Gauri Malik and PW-7 Dr. M.B. Singh. On the reference made by PW-1 Dr. Gauri Malik, PW-7 Dr. M.B. Singh, examined the victim on 29.9.1997. On examination of mouth of the victim, he found the serial of her teeth as follows:-

6EDCBA

ABCDE6

6EDCBA

ABCDE6

78. On the basis of position of teeth of the victim, PW-7 Dr. M.B. Singh has opined that the victim was aged seven years. He has proved his report Ex. Ka-6. During his cross-examination, he has stated that there was no need of x-ray of the teethes of the victim. During his cross-examination, he has opined that during the age 2-1/2 to 10 years (deciduous teeth) may be available in mouth of the children. He has refuted the suggestion that he has opined about the age of the victim on the basis of documents prepared by the police personnel and he has mentioned age seven years accordingly. No material fact was elicited during cross examination of PW-7 about the age of victim on the date of incident. On the basis of position of teethes available in her mouth, her age was observed by PW-7 Dr. M.B. Singh as seven years. Therefore, on the date of incident, as finding recorded by the trial court, the victim was minor aged seven years.

79. PW-1 Dr. Gauri Malik has medically examined the victim on 27.9.1997 at about 2:30 p.m. She has proved medical examination report Ex. Ka-1 and has stated that she referred the victim for age determination to the dentist. On internal examination, she has observed that perineum of the victim was lacerated. She found tear in shape and size of 7 O’clock. The victim’s vagina admitted tip of finger. There was redness and tenderness around the vagina. She prepared the smear slide and sent it to pathologist. She has opined that penis is a blunt object. During her cross-examination, she has clarified that finger tip also a blunt object. She has specifically stated that if nails are available in the finger, then sharp cut injury would appear otherwise by the pressure of the finger such injury may be sustained. She has stated that no scale formation was found by her on laceration. She has not mentioned duration of laceration or redness. She has accepted that she could not give definite opinion about rape with the victim. She did not found any clotted blood or fresh blood from the injury of the victim.

80. On the basis of observations of injury sustained by the victim on her private part, it is feasible that by slight penetration of penis of accused appellant perineum of private part of victim got tear in the shape and size of 7 O’clock. As per opinion of PW-1 Dr. Gauri Malik, there was space of tip of finger in victim’s vagina.

81. Therefore, it may be possible when the accused appellant inserted his penis slightly in the vagina of the victim then this injury of perineum was sustained by the victim and due to the effect of this injury, there was redness and tenderness around vagina of the victim. Hence, the evidence of PW-1 Dr. Gauri Mulik and PW-7 Dr. M.B. Singh has corroborated the evidence of PW-2, PW-3 and PW-4.

82. There is no substance in the argument of learned counsel for appellant that conduct of the accused can only be covered in the category of molestation under provisions of Section 354 I.P.C. only. On the other hand, on the basis of evidence of PW-2, complainant, PW-3 the victim and PW-4 mother of the victim and medical evidence adduced by PW-1 Dr. Gauri Malik and PW-7 Dr. M.B. Singh, it is abundantly proved beyond reasonable doubt on the basis of material available on record that accused appellant committed rape with the victim on the date and time of the incident. There was no occasion for PW-2, PW-3 and PW-4 to falsely implicate him in this crime.

83. The accused appellant is unable to prove this fact by adducing defence evidence that victim sustained above-mentioned injury on her private part, while she was playing with children below the tree of Neem or she sustained this injury elsewhere in other facts and circumstances. No oral or documentary defence evidence was adduced on behalf of the appellant during course of trial, regarding the facts that accused was falsely been implicated in this crime on the advise of village head or consultation and deliberation of the police personnel. The trial court has also considered medical evidence of PW-1 and PW-7 and recorded a finding that the evidence of PW-2, PW-3 and PW-4 is corroborated by medical evidence adduced by the doctors. The trial court has also considered the argument of learned defence counsel that the evidence of child witness cannot be accepted during course of trial. The trial court has repelled this argument put forth on behalf of the accused appellant and recorded finding that the minor victim was able to prove the facts and circumstances under which the accused appellant committed rape with her. She was the natural witness of the incident committed by the accused appellant.

84. The appellant has stated in his statement recorded under Section 313 Cr.P.C. that the complainant asked him to perform agricultural labour, for which he denied. Likewise, suggestion has been given to PW-2 complainant that accused appellant has falsely been implicated in this crime on advice of Village Pradhan. The appellant has not adduced any evidence in this regard, who was Village Pradhan and what was the enmity with the appellant. Likewise in which circumstances, the complainant asked to perform agricultural labour by him. For these two reasons, no father or anybody will absolve the real culprit and would falsely implicate the accused appellant or an innocent person and cast stigma or involve reputation of minor girl or family. The trial court has recorded finding in this regard in correct perspective.

85. On the basis of above mentioned discussions facts and circumstances, and evidence adduced on behalf of prosecution, there is not infirmity in the impugned judgment and order passed by the trial court. This appeal is liable to be dismissed and is hereby dismissed. The appellant is detained in jail. The trial court and the appellant be informed. Copy of judgment be sent to the trial court and the appellant. The appellant has to undergo sentence awarded against him.

86. Lower court record be sent back for compliance.

Order Date :- 20.12.2017

Virendra

 

 

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