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Bade vs State Of U.P. on 31 March, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved

Court No. – 53

Case :- CRIMINAL APPEAL No. – 6620 of 2009

Appellant :- Bade

Respondent :- State Of U.P.

Counsel for Appellant :- V.K. Sharma,C.P.Mishra,K.C. Yadav,Neeraj Srivastava A.C.

Counsel for Respondent :- Govt. Advocate

Hon’ble Mrs. Vijay Lakshmi,J.

The instant Criminal Appeal is directed against the judgment and order dated 9.10.2009 passed by the Additional Sessions Judge/ F.T.C. No. 3, District Basti, in S.T. No. 400 of 1999, State Vs. Bade, whereby convicting the appellant for ten years’ R.I. under section 376 I.P.C. with fine of Rs. 5000/- and in default of payment of fine, for a further imprisonment of six months. The appellant has also been convicted under section 3(2)(5) SC/ST Act with ten years’ R.I. and fine of Rs. 5000/- and in default of payment of fine for a further imprisonment of six months.

At the very outset, it is worth mentioning that this appeal was admitted on 6.11.2009. However, no order was passed on the bail prayer made by the appellant. Hence he remained in jail and is still in jail. On 13.12.2016 he was produced before this court from jail and on his request, amicus curiae was provided to him and Sri Neeraj Srivastava, Advocate, was appointed to assist this Court as amicus curiae.

Heard Sri Neeraj Srivastava, learned Amicus Curiae, for the appellant and Sri Shanti Prakash Patel, learned AGA for the State. Perused the record.

The brief facts of the prosecution case are as follows:

A first information report was lodged on 14.11.1993 by one Ramjeet Harijan mentioning therein that on 13.11.1993, when he, along with co-villagers Purnwasi and Padohi was working in the ‘Arhar’ field of one Narayan Tiwari, at about 1.00 P.M. they heard the sound of shrieks coming from the adjacent field. Hearing the shrieks, all of them rushed to the adjacent field where they saw the ten years’ old daughter of the first informant, lying all naked on the ground. Blood was oozing out from her vagina and she was shouting and weeping with pain. The appellant Bade and co-accused Santram were standing near her. Seeing the witnesses, both of them ran away from the spot, adjusting their clothes. The witnesses tried to catch hold of them but failed. The girl was immediately taken to the hospital and was given medical treatment. On the next day i.e. 14.11.1993 the report was lodged at the police station.

On the basis of the aforesaid information a case was registered against the appellant as Crime No. 195 of 1993, under section 376 I.P.C. and 3(1)(12) SC/ST Act at Police Station Mahuli, District Basti and the matter was investigated. The police recovered the blood stained earth, blood stained grass and leaves of Arhar and also some blood stained pieces of clothes from the spot. A Five Rupee note was also taken in possession about which the victim girl informed that the appellant Bade had given it to her to buy some sweets. The recovery memos of all the aforesaid articles were prepared, which were duly proved during trial and were marked as Exhibit Ka3 and Ka2, respectively.

The victim girl was medically examined on 15.11.1993 at 3.00 P.M. by a lady doctor at District Women Hospital, Basti, who prepared the injury report, which is quoted below:

O/E Ht. 4 ft 5″ Wt. 25 Kg, Teeth 14/14, Breast- not well developed on both side. Axillary and pubic hairs not developed. No mark of injury seen over external part of body.

I/E No mark of fresh injury seen over vulva, vagina and pericardium. It is very much difficult to admit 2 finger in the vagina, hymen is healed tear, spotting is present on the tip of the finger, vaginal smear taken and sent to the pathologist for estimation of spermatozoa.

Pathological Report: No spermotozoa seen in the vaginal smear.

Opinion of Rape:- No definite opinion of rape can be given as hymen is healed tear. No spermatozoa seen in the vaginal smear, spotting on the tip of finger might be menstrual.

Vaginal smear of the girl was sent for chemical examination and as per pathological report no spermatozoa was found in the vaginal smear. For determination of the age of the girl her x-ray was conducted. The x-ray report is available on the record, according to which the age of the girl was found to be about 12 years.

The I.O. prepared the site plan (exhibit Ka-9). He recorded the statements of the witnesses and after conclusion of the investigation submitted charge sheet against the accused-appellant.

The case being exclusively triable by the court of Sessions, it was committed to the Sessions Court, where initially, charges under sections 376 I.P.C. and 3(1)(12) SC/ST Act were framed on 4.7.2001. Later, additional charge under section 3(2)(5) SC/ST Act was also framed against the appellant on 25.7.2009. The appellant denied from all the charges and claimed to be tried. Thus the trial proceeded.

The prosecution in order to prove its case produced six witnesses in all. PW1 is Ramjeet, who is the father of the victim girl and the first informant, PW2 is the victim herself, PW3 is Purnwasi, who is the witness named in the FIR, PW4 is Dr. Renu Rai, the lady doctor, who has examined the victim, PW5 is S.I. Radhey Shyam Verma, who has given the secondary evidence about preparation of the check report by Late Vibhuti Sharan Chaturvedi, who had actually prepared the check report but he could not be produced in the court due to his death and PW6 is Hari Ram Lal, who is a clerk in the office of C.M.O., Basti. He has proved the radiological report of the prosecutrix.

After conclusion of the prosecution evidence the statement of the accused-appellant was recorded u/s 313 Cr.P.C. in which he denied from all the allegations and pleaded his false implication due to enmity. He also stated that goats of the first informant used to enter into his field and grazed the crop. As he used to resist, the first informant lodged a false report against him. No defence evidence has been adduced by the appellant.

The learned court below, on a detailed appreciation of evidence, found the prosecution case reliable. Accordingly, it held the appellant guilty and convicted and sentenced him as aforesaid.

Being aggrieved by the aforesaid judgment of conviction and sentence, the appellant has challenged its legality and correctness in this appeal on the following grounds:

1. The order of conviction is against the weight of evidence on record.

2. The medical evidence does not support the prosecution version.

3. The victim girl was habitual to sexual intercourse.

4. The police had earlier submitted final report in favour of the co-accused Santram, against which no protest petition was filed. He was not even summoned under section 319 Cr.P.C.

5. No independent witness has been examined and all the material witnesses produced in court are highly interested witnesses.

6. There is contradiction between the statements of the first informant and the victim. The first informant has stated that he alone had gone to the police station to lodge the FIR, whereas the victim girl has stated that she had accompanied her father to the police station.

7. The appellant is an old person of about 75 years of age and at the time of the incident he was about 60 years of age, hence the story of his committing rape of a ten years’ old child is unnatural and unbelievable.

Per contra, learned AGA has vehemently contended that the prosecution has proved its case beyond all reasonable doubts against the accused appellant. In rape cases, normally, no independent witness are available because the offence of rape is committed in a secret place and not openly. Learned AGA has further contended that the statements of the witnesses have been recorded after a long gap from the date of the incident. The incident has taken place on 13.11.1993 whereas the statements of the witnesses have been recorded between the period from 2007 to 2009, therefore, some contradictions are bound to occur in their statements, which are natural and are indicative of the fact that the witnesses have not been tutored. On the aforesaid grounds learned AGA has contended that the trial court has rightly convicted the appellant and there is no need to interfere in the judgment impugned.

Considered the rival submissions of the parties.

The only point for determination in this appeal is whether the prosecution has successfully proved its case beyond all shadows of reasonable doubt against the appellant?

Before coming to a conclusion about the legality and correctness of the impugned judgment and order, it appears expedient to have a glance on the statement of witnesses produced by the prosecution to check their veracity and credibility.

PW1, who is the first informant and the father of the victim has fully supported the prosecution case in his testimony. He has stated that about 13 years have elapsed since the date of incident when at about 1.00 P.M., he, after hearing the sound of shrieks, had rushed to the adjacent ‘Arhar’ field along with the witnesses and had seen his ten years’ old daughter, lying all naked in that field. He also saw the appellant Bade and co-accused Santram standing near her, both of whom after seeing them, ran away from the spot. He has further stated that the girl was shouting in pain and blood was oozing out from her private part. He immediately took her to the hospital and after her treatment, lodged the report on the next day. PW1 has been cross-examined at length by the learned counsel for defence but nothing could be elicited to cast a shadow of doubt on the veracity and truthfulness of his statement or to discredit any part of his testimony and his statement as a whole, inspires confidence.

PW2, the victim girl has also supported the prosecution case during her testimony in court. She has stated that on the day of incident, there was Deepawali festival. She was collecting tamarind under tamarind tree when the accused Bade and Santram reached there. Bade, who is present in the court, gave her a five rupee note and asked her to accompany him on the pretext that he would give her some sweets. She followed Bade and Santram. They took her to a field of Arhar where Santram pressed her mouth with his hands and the appellant Bade committed rape with her. She has further stated that meanwhile she somehow managed to remove the hands of Santram from her mouth and shouted for help. Hearing her shrieks, her father Ramjeet and her neighbours Purnwasi and Padohi reached the spot. Seeing them, the appellant Bade and Santram ran away from the spot. She has further stated that due to rape, blood was flowing from her private part. Her father took her to the hospital, where after her treatment, she recovered. On the next day her father took her to the police station and from police station, a lady constable took her to the District Women Hospital, Basti, where she was medically examined. She has also stated that the five rupee note, which the appellant Bade had given her, was handed over to the police by her. PW2, i.e. the victim has duly proved the recovery memo of five rupee note, which was marked as exhibit Ka2. She has further stated that the sons of Bade use to threaten her that they would not spare her in case Bade is sent to jail.

PW2 has been cross-examined at length by the learned counsel for the accused. During her cross-examination she has stated that Bade had never given her any money prior to this incident. She has also stated that she had gone to the police station where the police had interrogated her several times.

Thus a perusal of the statement of PW2 clearly shows that she has given cogent and natural answers to all the questions put to her during the cross-examination and her statement as a whole appears trustworthy and worthy of credit.

PW3 Purnwasi, who is an eyewitness of the occurrence and who had reached the spot along with the father of the victim, has also supported the prosecution case in his testimony. He has stated that the police had collected the blood stained earth, grass, Arhar leaves and had prepared the recovery memo. He had signed on such recovery memo. This witness has proved the recovery memo as exhibit Ka3. During his cross-examination he has admitted that earlier he had filed an affidavit to the effect that he had not seen any occurrence. He has also admitted that he is a near relative (Kaka) of the first informant. However, apart from his aforesaid admission, nothing unreliable or unnatural appears in his testimony.

PW4, the lady doctor, who had examined the victim, has stated that she had examined the victim on 15.11.1993 at 3.00 P.M. and found that the height of the girl was 4 ft. 5 inch, her weight was 25 Kg, her breast and pubic hairs were not developed. She further stated that though there was no external injury on her body but her hymen was found torn and on internal examination blood was found on the tip of finger.

The rest of the witnesses are formal in nature. PW4 is the police constable and PW5 is the clerk in the C.M.O. Office, both of whom have proved the official documents produced by the prosecution in this case.

Learned trial court has considered and discussed in detail the evidence produced by the prosecution and found the prosecution case reliable and trustworthy. Accordingly, it convicted the appellant. As the girl belonged to SC/ST caste whereas the appellant belonged to OBC caste, section 3(2)(5) of the SC/ST Act was found proved against the appellant. Accordingly, the appellant was convicted and sentenced under section 3(2)(5) also.

On a close scrutiny of the entire evidence, as discussed above, this court does not find any force in the arguments advanced by learned counsel for the appellant.

In so far as the argument regarding delay in lodging the FIR is concerned, the well settled legal position is that in the cases of rape, the delay in lodging the FIR does not adversely affect the prosecution case due to reason that the question of family prestige is involved and the people generally are hesitant to make it public by lodging the FIR. Moreover, in the instant case the delay of one day has been properly explained by the first informant himself. He has stated that first he took his daughter to hospital for treatment and after her treatment he lodged the FIR the next day.

In so far as the arguments regarding interestedness of the witnesses is concerned, it also does not make any difference because independent witnesses is hardly available in rape cases. The Hon’ble Apex court in a catena of judgments, has laid down the law that even the solitary statement of the prosecutrix is sufficient and there is no requirement of any further corroboration to convict a person under section 376 I.P.C. (2008 SCC (Criminal) 188, State of M.P. Vs. Babu Lal).

The prosecution case finds full corroboration by the injury report and the statement of the lady doctor. The recovery memo of blood stained earth, grass and blood stained leaves of ‘Arhar’ also supports the prosecution story and very well establish the place of occurrence. Except one contradiction with regard to the fact that whether the first informant had gone to the police station all alone or with the victim girl, there is no material contradiction in the statements of the witnesses. It is also to be kept in mind that the witnesses are rustic and illiterate villagers and their statements have been recorded after a gap of 13 years of the occurrence, therefore, some contradictions are bound to occur and those should be ignored. The witnesses are throughout cogent and consistent during their testimony. The girl was of very tender age at the time of the occurrence, which is evident from her medical examination report showing clearly that neither her epiphysises were found fused nor her pubic hair and breast were found developed. To the contrary the accused-appellant was between 55-60 years of age at the time of the occurrence. The girl has stated that the appellant gave her a five rupee note and took her with him on the allurement of giving her some sweets. The innocent girl followed her in the hope that she would have some sweets on the occassion of Deepawali festival without having any idea of what was going to be happened with her.

All the facts and circumstances of the case and the evidence available on record clearly point out towards guilt of the appellant. Two eyewitness have seen the appellant running away from the place of occurrence, adjusting his clothes. Only for the reason that the co-accused Santram could not be charge-sheeted due to his abscondance and he was not summoned under section 319 Cr.P.C., the guilt of the present appellant will not be reduced and he cannot be exonerated from the legal consequences of his act. It will not be out of place to mention here that the trial of co-accused Santram is pending in the court below as S.T. No. 42 of 2010. In view of the above, this court is of the considered view that court below has rightly convicted and sentenced the appellant by the impugned judgment and order. There is no reason to interfere in the aforesaid judgment passed by the trial court. The appeal being merit less is liable to be dismissed.

Accordingly, the appeal is dismissed.

The appellant is in jail. He shall remain in jail to serve out the remaining period of sentence.

Sri Neeraj Srivastava, Advocate, who has very efficiently assisted the court as Amicus Curiae, shall be paid Rs. Eleven thousand as fee.

Let the lower court’s record along with a copy of this judgment be immediately sent back to the court below because as per the office report dated 10.10.2013 it is required for disposal of S.T. No. 42 of 2010, State Vs. Santram.

Order Date :- 31.03.2017

Pcl

 

 

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