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Amar Pal Mishra @ Misir vs State Of U.P. on 18 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved on: 05.09.2019

Delivered on: 18.02.2020

Court No. – 27

Case :- CRIMINAL APPEAL No. – 731 of 2018

Appellant :- Amar Pal Mishra @ Misir

Respondent :- State Of U.P.

Counsel for Appellant :- Punit Kumar Shukla,Raj Kumar Dwivedi

Counsel for Respondent :- Govt. Advocate

Hon’ble Karunesh Singh Pawar,J.

1. Heard learned counsel for appellant and Sri Shiv Nath Tilhari, learned A.G.A. for State respondents.

2. This appeal under Section 374 (ii) Cr.P.C. has been filed against the judgment and order dated 13.03.2018 passed by Special Judge, POCSO Act/ Additional Sessions Judge, Court No.7, Sitapur in Sessions Trial No.19 of 2014 arising out of Case Crime No. 06 of 2014, under Sections 376, 506 I.P.C. and Section 4 of Protection of Children from Sexual Offences Act, 2012 Police Station Sandana, District Sitapur whereby the appellant has been convicted and sentenced under Section 376 I.P.C. for ten years rigorous imprisonment and a fine of Rs.5,000/- failing to deposit fine, additional one year simple imprisonment, under Section 506 I.P.C. for six months rigorous imprisonment and a fine of Rs.500/- failing to deposit fine one month additional simple imprisonment and under Section 4 of Protection of Children from Sexual Offences Act for ten years rigorous imprisonment and a fine of Rs.5,000/- failing to deposit fine one year additional simple imprisonment. All the sentences were to run concurrently.

3. Prosecution story in short is that on 15.01.2014 at around 8:00 p.m. daughter of the informant Kumari Sandhya aged about 12 years has been taken away by the accused appellant, Amar Pal Mishra @ Misir from her house to his home. The daughter of the informant was kept in the kachi kathari situated in the house of accused appellant. When the daughter of the informant got herself free somehow from the custody of the accused appellant she narrated the whole incident and she further told that the appellant has threatened her to kill if she tells this to anybody.

4. In respect of the incident, the informant went to the Police Station Sandana with a typed written report which is exhibit d-1, on the basis of said written report in Case Crime No.6 of 2014, under Sections 452, 376 I.P.C. read with Section 506 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act was lodged against the appellant/accused, Amar Pal Mishra @ Misir. The chik report is exhibit d-6, the chik report was entered into the G.D. which is exhibit d-7. The Investigating Officer took up the investigation and conducted an inspection of the place of occurrence and prepared the site plan which is exhibit d-8 and after recording the statement of the witnesses under Section 161 Cr.P.C., he has filed the chargesheet against the accused appellant under Sections 452, 376 I.P.C. read with Section 506 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act which is exhibit d-9.

5. The learned trial court vide his order dated 03.06.2014 framed the charges against the accused appellant under Sections 376, 506 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act. The prosecution in respect of his case has produced following prosecution witnesses:

6. (i) P.W.1, the informant Anurag Shukla, (ii) P.W.2, victim/ prosecutrix, Kumari Sandhya, (iii) P.W.3, Dr. Ritu, (iv) P.W.4, Dr. Ashish Wakhlu, (v) P.W.5, H.C.P. Rajesh Pandey and (vi) P.W.6, Raj Kumar Saroj.

7. The defence has also produced D.W.1, Bitola Devi who is wife of accused appellant as well as D.W.2, Rampal.

8. P.W.1, Anurag Shukla, while deposing before the Court has stated that at the time of the incident, age of the prosecutrix was 9 years. He further stated that on the date of incident appellant took the prosecutrix at 8:00 p.m. from the house of the informant and took to his place and thereafter the prosecutrix returned home at 11 o’clock in the night. He further stated that the prosecutrix became unconciouos and when she regained consciousness in the night at around 4 a.m. then she told him that she has been raped by the appellant in his house inside kachi kathari. She further told to the P.W.1 that appellant has threatened that if she tells this incident to anybody then she and her father/informant shall be killed. He has further stated that at the time of incident his daughter was wearing school dress which was camel colour skirt, undergarment and underwear. Fresh blood was oozing out from her vagina and due to that her underwear got stained. He went to the Police Station on the next date at 9 a.m. and got a written report typed, he gave that written report at Police Station which was shown to him and proved as exhibit d-1. Chik report was lodged on the basis of the aforesaid written report. He further stated that cloths of her daughter such as skirt, underwear and whatever she has wearing at the time of occurrence have been taken by the Police and proved the recovered items as exhibit d-2. He further stated that Investigating Officer thereafter came to his Village and on pointing out of the P.W.1 recovered kathari which was lying on the cot of the accused in his Kachi Kathari and took it into his possession, a bloodstained piece of kathari was also seized by the Investigating Officer which is made exhibit d-3 thereafter, he stated that prosecutrix was sent to District Women Hospital from where she was referred to the Medical College and thereagain she was medically examined and remained admitted for five days. Thereafter, she was discharged. P.W.1 also shows the site of occurrence and site plan was accordingly prepared by the Investigating Officer. P.W.1 during deposition in the Court was shown the seized cloths of the prosecutrix, namely, bloodstained underwear, one skirt of camel colour (school dress) and bloodstained piece of kathari, witness P.W.1 after seeing these items (exhibit d 1 to d 3) has denied the suggestion that incident has taken at some other place near pond and accused appellant is being falsely implicated due to enmity. He has further denied the suggestion that since the accused was suffering from hydrocele, he was not capable to commit rape on the prosecutrix.

9. P.W.2, prosecutrix Kumari Sandhya was produced before the Court to assess whether the prosecutrix was competent enough to depose, number of questions were asked from the prosecutrix by the learned trial court and from the answer given by the prosecutrix, the trial court came to the conclusion that she is able to give the evidence. In camera proceedings, the prosecutrix has stated that she knew the accused, he resides in the same village and she used to call him Fufa (uncle) on the date of incident she was at home along with her mother and elder sister. P.W.1 at that time had gone to cook the food for the yagya at around 8:00 p.m. while she went to ease herself then she was taken away by the accused appellant and thereafter by taking of her cloths he committed rape and while she cried, her mouth was forcibly shut down. After committing the rape, she was thrown outside the house of the accused at 2 a.m. when the father of the prosecutrix came he took her home at that time she could not know however, when she regained consciousness at around 4 a.m. then she told the incident to her parents. She further stated that she was thereafter sent for medical examination at Mahila Hospital, Sitapur from there she was referred to Lucknow again she was medically examined. She also stated that there was bleeding in her private part she has further confirmed her statement recorded under Section 164 Cr.P.C. In the cross examination, she stated that Amar Pal Mishra accused took her into his lap, she cried but she was forcibly kept mum then the accused took her at his house and raped her for half an hour, she denied the suggestion that she has not been raped. She was subjected to detail cross-examination however, the prosecutrix kept firm on her testimony.

10. P.W.3, Dr. Ritu who has examined the prosecutrix at District Hospital, Sitapur as Emergency Medical Officer has stated that from the private part of the prosecutrix blood was oozing out and, therefore, she referred the prosecutrix to the Medical College, Lucknow Pediatric Department, vaginal smear was prepared by her and sent for pathology report.

11. P.W.4, Dr. Ashish Wakhlu who was posted as Surgeon in King Gorge Medical Collage, Lucknow stated that prosecurix was admitted and given primary treatment by one Dr. Yadvendra who was his junior Doctor he also examined the prosecutrix and on his advice and opinion she was kept admitted with effect from 17.01.2014 to 22.01.2014 in his supervision. On 22.01.2014, the prosecutrix was discharged, he stated that discharge summary was prepared in his direction by the junior Dr. Yadvendra, according to him, the prosecutrix was admitted for treatment of injury received on her private part on account of rape. The injuries received by the prosecutrix was of Grade-II Perineal Tear and was recorded in the Medical report. He further stated that if the person committing rape was affected by hydrocele then these kind of injuries can come on the prosecutrix.

12. P.W.5, Head Constable Rakesh Pandey was examined and has proved exhibit d-6 and 7 which is copy of the chick report and G.D.

13. P.W.6, Raj Kumar Saroj, Investigating Officer has stated that he has conducted the investigaton and took the evidence of the prosecution witnesses and has prepared the recovery memo of the cloths of the prosecutrix as well as prepared the site plan and has also prepared the recovery memo of the piece of bloodstained kathari. He further stated that on 03.01.2014, the prosecutrix Kumari Sandhya was student of Class III and in her certificate, date of birth is entered as 01.01.2005. He further stated that after completing the formalities he has filed the chargesheet.

14. D.W.1, wife of the accused Bitola Devi was examined. She has stated that her father had 24 bighas of agricultural land and after death of her father in her childhood that land was inherited by her. In lieu of funeral of her father, the complainant and his family members were asking 12 bighas of land which her mother refused. Later on after demise of her mother it came to be recorded in her name and still is in her name. She has stated that since the complainant was asking half of her land which she refused, therefore, the complainant was inimical towards her family and it is because of this reason her husband/accused has been falsely implicated. In her examination-in-chief, she admitted the fact that her husband is suffering from hydrocele and she further stated that he was incapable of committing rape.

15. D.W.2, Rampal has been examined who has supported the defence case.

16. Learned counsel for appellant has submitted that appellant has been falsely implicated in this case, prosecution has not been able to prove its case beyond reasonable doubt. The appellant was too old to commit rape. He has further submitted that evidence of the prosecution witnesses are contradictory. The evidence of D.W.1 and D.W.2 have supported the defence version and due to the property dispute he has been falsely implicated in this case. He has further submitted that F.I.R. has been lodged on the next date after sufficient delay and no explanation of the delay has been given.

17. On the other hand, Sri Shiv Nath Tilhari, learned A.G.A as well as Sri Tilak Raj Singh, learned A.G.A. have opposed the appeal and have supported the prosecution version. Learned A.G.A. has submitted that evidence of the prosecutrix remained intact at every stage even in the cross examination she has remained firm. The testimony of the prosecutrix has been fully corroborated by the medical evidence and proved by the F.S.L. report. He has lastly submitted that prosecutrix was 9 years old girl and subjected to rape by the accused-appellant. The testimony of the prosecutrix is corroborated by the evidence of P.W.1 and has been corroborated by the medical evidence as well as the testimony of P.W. 4 and P.W. 5.

18. Learned A.G.A has further placed reliance on the judgment of the Supreme Court in the case of State of Madhya Pradesh Vs. Balu reported in 2005 (2) SCC 108.

19. Having considered the rival submissions of the parties, this Court carefully proceeds to examine the prosecution story. So far as the age of the prosecutrix on the date of occurrence is concerned, the informant has stated that prosecutrix was 12 years of age. In the F.I.R./written report, the age of the prosecutrix has been stated to be 12 years by the informant. While giving the statement of P.W.1, the age of the prosecutrix has been stated to be 9 years. The prosecurix, P.W.2 in her testimony has stated her age to be 9 years. On 05.04.2016 when her statement was recorded and as such on the date of occurrence i.e. 15.01.2014, it appears that her age was 7 years. The Investigating Officer, P.W.6 has stated that as per the school records on 23.01.2014, the prosecutrix was student of class III and certificate of the school depicts her date of birth as 01.01.2005 according to which, the age of the prosecutrix on the date of occurrence comes to about 9 years. This Court has noticed that the defence in their statement has not objected the age of the prosecutrix rather has accepted the same. In this regard, I am in agreement with the findings given by the learned trial court and as per the evidence on record, the age of the prosecutrix on the date of occurrence is definitely less than 18 years and she was minor.

20. P.W.1 is not an eyewitness and while the occurrence took place he was taking part in a yagya at the place Jagli Nath Baba in the same village and returned after the incident had already taken place.

21. P.W.2 in her testimony has supported the prosecution version and has clearly stated that while she went to ease herself outside the house at 8:00 p.m., the accused Amar Pal Mishra took her away at his house and then raped her when she cried then her mouth was forcibly shut down, on that date she was wearing school skirt which was part of school dress, underwear and undergarments. She further stated that after committing the rape, Amar Pal Mishra left her outside the house then around 2 a.m. when her father returned he took her to his house. She further stated that she was subjected to rape for half an hour. When her father took her home at that time she was bleeding from private part. Thus from the perusal of the evidence of the prosecutrix, it appears that prosecutrix has fully supported the prosecution case. The testimony of the prosecutrix is intact even in the cross-examination. She was medically examined on 16.01.2014 at District Woman Hospital, Sitapur. No injury was found in her external examination. However while she was internally examined, she was found to be bleeding from her private part and thus referred to K.G.M.U., Lucknow where the prosecutrix remained admitted from 17.01.2014 to 22.01.2014 in the supervision of Dr. Ashish Wakhlu. During the medical examination it was found by K.G.M.U., Lucknow that prosecutrix suffered from Grade-II Perineal Tear.

22. P.W.3, Dr. Ritu has also stated that while she medically examined the prosecutrix, she was bleeding from the private part. P.W.4 has categorically stated that prosecutrix was treated for a period of 5 days i.e. with effect from 17.11.2014 to 22.11.2014 on account of injury received by the prosecutrix on her private part. P.W.4 further stated that this injury is known as Grade-II Perineal Tear and as such it has been recorded in the medical report in this name. He further stated that this injury could have been caused due to rape. He further stated that prosecutrix was admitted due to injury received in her private parts.

23. The underwear of the prosecutrix, skirt, kathari and piece of cotton total 5 items which were sent to F.S.L. report, on all 5 cloths human blood was found, no spermatozoa and semen has been found.

24. P.W.1 in his statement has proved the fact that on his pointing out the Investigating Officer has took the bloodstained kathari into his possession which has been identified by him, which was shown to P.W.1 in the open Court and thus has proved the same. P.W.6, Investigating Officer further admitted the fact that the piece of bloodstained kathari was recorded and sent to F.S.L. for examination.

25. Apparently, there are minor discrepancies in the statement of prosecution witnesses such as the manner in which the prosecutrix returned home at one place. It has been stated by P.W.1 that prosecutix somehow caught free from the custody of the appellant and returned home whereas in his written report he has not stated about his location at the time of occurrence whereas while deposing before the Court he has stated that he was in the yagya, however, at the time of returning his village from 11 p.m. to 2 a.m, the prosecutrix has stated that P.W.1 has returned at 2 a.m. However, these descrepancies are minor in nature and they do not go to the root of the matter and as such do not affect the prosecution case.

26. D.W.1 wife of the accused Bitola Devi has stated that her father died in her childhood. Her mother was blind. To perform the last rites of her father the complainant demanded 12 bighas of land from her mother which she refused and, therefore, complainant was inimical with them. She further stated that if she had not taken the property of her father the same would have been inherited by the complainant.

27. D.W.2 stated that father of the Bitola Devi died 40-45 years back and has also stated that complainant demanded 12 bighas of land to perform the last rites of her father, which was refused by the mother of D.W.1 and, therefore, the complainant became inimical and has falsely implicated the accused in this case. The plea of false implication by the defence appears to the quite improbable for the reason that father of D.W.1 died 40-45 years back and if the complainant became inimical with the accused at that time then it does not appear to reason that he will wait 40-45 years to falsely implicate accused. The reason for enimity also appears to be improbable as 12 bighas of land just to perform the last rites is too big a consideration to belive.

28. Having considered the statement of D.W.1 and D.W.2, it appears that although they have been stated about the property dispute between the complainant and the wife of the accused. However, no evidence of any such dispute is available on record, therefore, this defence is of no use to accused appellant. This Court has noticed that offence has been committed on 15.01.2014 at around 8 to 9 p.m. prime F.I.R. was lodged promptly on 16.01.2014 at 2:45 p.m. As per the school certifice of the prosecutrix, the age of the prosecutrix comes to about 9 years, as per the medical report, age of the prosecutrix is about 9 years and as per the statement recorded under Section 164 Cr.P.C. of the prosecutrix, the age of the prosecutrix again comes to 12 years. Learned trial court before examining the prosecutrix in camera proceeding, cautiously subjected her to various questions just to assess whether she has capable enough to testify against the accused and after he was convinced, the camera proceedings were initiated.

29. The five cloths including the bloodstained kathari and skirt of the procecutrix were sent to F.S.L. for report. The F.I.R. corroborates the prosecution story and human blood was found on all the five cloths. The statement of P.W. 3 that while the prosecutrix was brought to District Woman Hospital, Sitapur there was bleeding in her private part also corroborates the testimony of the prosecutrix. The statement of Dr. Wakhlu, P.W.4 that prosecutrix was admitted for five days due to injury on the person of the prosecutrix could have been caused due to rape committed by such person who is suffering from hydrocele further corroborates the prosecution story. D.W.1, Bitola Devi wife of the accused-appellant has admitted the fact that accused was suffering from hydrocele. I have noticed that the statement of the prosecutrix remained intact even after prolonged cross examination.

30. In view of the statement of P.W.3, P.W.4 and P.W.5 along with the admission of D.W.1 corroborates the testimony of the prosecutrix along with the F.S.L. report. The testimony of the prosecutrix with regard to the incident appears to be worthy of credence and does inspire confidence and has not shaken even after the prolong cross-examination, she was subjected by the defence.

31. In view of the aforesaid discussions, this Court is in agreement with the findings of the learned trial court given in this respect.

32. The appeal fails and is, accordingly, dismissed.

(Karunesh Singh Pawar,J.)

Shubhankar February 18, 2020

 

 

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