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Beeru Alias Shah Alam vs State Of U.P. on 27 July, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 20

Case :- CRIMINAL APPEAL No. – 118 of 2015

Appellant :- Beeru Alias Shah Alam

Respondent :- State Of U.P.

Counsel for Appellant :- Shivam Yadav,Manvendra Nath Singh,Sahab Tiwari,Saurabh Tiwari

Counsel for Respondent :- Govt.Advocate

Hon’ble Ravindra Nath Kakkar,J.

This criminal appeal has been filed against the judgement and order dated 9.12.2014 passed by Additional Sessions Judge, Court No. 1, Bhadoi-Gyanpur in Sessions Trial No. 38 of 2012 (State Vs. Beeru alias Shah Alam) convicting and sentencing the appellant to undergo for seven years R.I. under section 376 IPC and to pay a fine of Rs. 10,000/- and to undergo for two years RI under section 506 IPC. In default of payment of fine he further will undergo for six months additional imprisonment. Both the sentences shall run concurrently.

Prosecution story in brief are that on 19.08.2011 at about 8.00 P.M. prosecutrix went to purchase vegetables and when she was returning, accused Beeru @ Shah Alam, resident of the same mohalla interrupted the prosecutrix, took her in a vacant plot situated in back side of his shop and committed rape with her. When prosecutrix returned home, she narrated whole story to her mother, its relevant entry is made in the general diary. The prosecutrix was sent for her medical examination at Maharaja Balvant Singh Government Hospital, Bhadoi but due to non availability of lady doctor, she was sent to District Hospital and thereafter her medical examination was conducted on 27.08.2011 at Primary Health Centre, Gopiganj at Bhadoi. Investigation was conducted, site plan exhibit Ka-5 was prepared, statement of prosecutrix was recorded, accused was arrested and statement of prosecutrix under section 164 Cr.P.C. was recorded by the Judicial Magistrate. After completion of the investigation charge sheet against accused under sections 376, 506 IPC was submitted. Charges against accused under sections 376, 506 IPC have been framed, the accused denied the charges levelled against him and claimed trial.

In support of the case, prosecution has produced three fact witnesses namely P.W. 1 Prosecutrix/victim, P.W. 2 Sunita Devi, mother of the prosecutrix and P.W. 6 Sanjay Kumar, cousin brother of the prosecutrix. Formal witnesses namely P.W. 3 Dr. V.K. Maurya, P.W. 4 Dr. A.K. Singh, P.W. 5 Dr. Manoj Kumar Mishra and P.W. 9 Dr. Aasita Sachan were examined. Further in support of police papers formal witnesses P.W. 8 Head Constable Rakesh Yadav and P.W. 7 Narendra Pratap Singh, Investigating Officer were examined. After close of the prosecution evidence, statement of the accused under section 313 Cr.P.C. was recorded. Accused in his defence has stated that Pradhan of the village Lallan Gupta with the help of his followers were encroaching the land of graveyard, on which the applicant and his father met with police and administration and due to this enmity village Pradhan, mother of the prosecutrix with the aid of the police falsely implicated the accused and further contended that P.W. 2 wanted to vacate the wooden shop of the accused which was situated in front of her betel shop..

In support of the defence two affidavits 36 kha/1 and 36 kha/2 was produced and after hearing both the parties the court below has convicted and sentenced the accused. Aggrieved against the same, this appeal has been preferred.

Learned counsel for the appellant has submitted that the impugned judgement of conviction and order of sentence is against the weight of evidence, there is delay in lodging the FIR and no plausible explanation has been tendered by the prosecution in delay of lodging the FIR. Medical report also is not in consonance with the prosecution case and is against the testimonies of P.W. 1 and 2. As per allegation of the prosecution the accused took the victim in a lonely place of the market, no alarm or any protest was made by the prosecutrix. On the basis of age, learned counsel for appellant contended that the prosecutrix was a consenting party. Offence of rape can not be possible in such a eventuality. Next contended that P.W. 4 Dr. A.K. Singh has stated that the age of the prosecutrix was 15 years. There is always variance of two years, therefore, the age of the prosecutrix may be taken as 17 years in favour of the accused. Next contended that on the basis of Radiological report and Pathology report P.W. 9 Dr. Aasita Sachan prepared a supplementary reports, she did not find any external injury on the private part of the victim and opined that hymen was heeled torn and two fingers were easily passing over and lastly contended that appellant is in jail since 9.12.2014 and he was also remained for more than three months during trial. Half of the sentence has already been served out. Next argued that the alleged offence is said to have been committed on 19.08.2011 prior to amendment in the Section 376 IPC and as per the old Act dated 3.2.2013 the consenting age of the girl’s was 16 years and the minimum punishment was fixed to be seven years, therefore, the provision of law as per old Act is applicable in this case. A prayer has been made to modify the sentence already under gone. Further, in this connection, it has been submitted that appellant is innocent person, has not committed the alleged offence and has been falsely implicated by the village Pradhan by hatching the conspiracy against the appellant because he had made a complaint against him for encroaching the land of graveyard. The prosecution has failed to establish its case beyond the reasonable doubts, so the appellant is liable to be acquitted.

Per contra learned A.G.A. has submitted that as per medical evidence the age of the prosecutrix was about 15 years at the time of occurrence in question. She was un-married girl and the prosecution finds support from the statement of the prosecutrix. The impugned order of conviction is well reasoned and discussed as per the established legal preposition which requires no interference by this Court.

In the light of the submissions made by both the parties and after going through the record, I find that learned trial court has held that on the basis of the evidence of the prosecutrix as corroborated by other evidences that she was not only sexually assaulted by the accused but the same was without her consent and against the will of the prosecutrix. The age of the prosecutrix was held to be 15 years on the day of incident and further held that though there was delay in lodging the FIR but it was satisfactorily explained accordingly. The accused was found guilty of the offence punishable under section 376 IPC and sentenced as stated above.

The learned counsel appearing on behalf of the appellant vehemently argued that the prosecution case was not proved by the prosecution beyond the reasonable doubt. The absence of the injury on the person of the victim was a material fact not excluding the possibility of the victim having been a consenting party. The delay in lodging the FIR has not been properly explained. The delay coupled with the medical report rendered the prosecution case doubtful. Further stated that the whole prosecution story was extremely improbable, unnatural and weak and delay in lodging the FIR was fatal to the prosecution. There was an element of ‘consent’ on the part of the prosecutrix, so, there was no question of any rape. The absence of any injury on the person of the prosecutrix suggests that the prosecutrix engaged herself in the intercourse as per her will.

Rebutting the above arguments, learned A.G.A. vehemently opposed the submissions of learned counsel for the appellant and submitted that none of the arguments are sustainable in the eye of law and there is no reason for doubting the prosecution case in the given facts and circumstances, hence the impugned judgement of the conviction is liable to be confirmed.

The questions arisen for consideration before me are: whether the prosecution version as alleged inspires confidence of the Court on the evidence adduced? whether the prosecutrix is a witness worthy of reliance? whether the testimony of the prosecutrix who has been a victim of rape stands in need of corroboration and, if so, whether such corroboration is available in the facts of the present case? What was the age of the prosecutrix? Whether there was unexplained delay in lodging the FIR?

Before proceeding to examine the legality and correctness of the impugned judgement, I would like to refer established legal prepositions on the subject in the light of the submissions raised by both the parties.

It is established legal preposition that if the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insigniicant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof were not exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. The Court had to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on woman. Hon’ble Supreme Court in State of Punjab Vs. Gurmeet Singh and others, 1996 (2) SCC 384 has held that:

“A rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, on its shoulder has a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case”.

In State of Maharastra Vs. Chandra Prakash Kewalchand Jain AIR 1990 SC 658 The Hon’ble Supreme Court has held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:

“It is necessary at the outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex-offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court basis a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute ‘Evidence’ means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section. 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114(b), illustration.

A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness.”

In State of Punjab Vs. Gurmit Singh and others AIR, 1996 SC 1383- Hon’ble Supreme Court held that:

“In cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensibility. Minor contradictions or insignificant discrepancies in the statement of prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The cause may look for some assurance of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice”.

In State of H.P. Vs. Raghubir Singh (1993) 2 SCC 622- The Supreme Court held that:

“There is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity”.

So far as the argument with regard to delay in lodging the FIR is concerned, it is relevant to mention that mere delay in lodging the FIR under sexual assault cases may not be a ground by itself for throwing out the entire prosecution case. The court has to seek an explanation for delay and test the truthfulness and plausible explanation of the reason assigned.

In Karnail Singh Vs. State of M.P. 1995 (5) SCC 518 it is held that: “the delay as explained to the satisfaction of the Court, it can not be counted against the prosecution”.

On the above stated legal prepositions, I find that in the case in hand, the incident as alleged to be of 19.08.2011 in the night at about 8.00 P.M. and FIR was lodged on 26.08.2011 at 16.10 P.M., P.W. 1 victim in her statement before the court has stated that after the incident she came to her residence and narrated the whole story to her mother and a written report was scribed by one Pankaj Upadhyay, thereafter its written report was given at police station. P.W. 2 mother of the prosecutrix in her statement before the Court stated that on 19.08.2011 her daughter went to purchase vegetables and returned back at about 8 to 9 P.M., at that time she was purturbed. On being inquired she narrated that accused Beeru called her and took her in a vacant plot and committed rape. She went along with her daughter to the police station but the report was not written and thereafter on 26.08.2011 only with the assistance of the village Pradhan, his cousin Sanjay along with the victim went to the police station, thereafter the report was lodged. It also transpires that on this incident there was a communal tension from both the sides. Under these fact situation, lodging the FIR after 07 days delay of the incident can not be said to be delayed one. Moreso, there is plausible explanation for lodging the FIR after seven days of the incident, whereas on the very same day the lodging of the FIR was denied by the police.

It is a common practice and in such a situation as above stated police are reluctant to lodge an FIR and it was only when the pressure was made upon the police the report of the incident was lodged. So, I find no substance regarding delay of lodging the FIR.

The next important point to be determined in the case is the age of the prosecutrix for holding the person guilty under section 376 IPC. In this case, I find that in FIR it is mentioned that at the time of incident prosecutrix was studying in class VII and her age was only 13 years. P.W. 2 mother of the prosecutrix has also stated that the age of the prosecutrix was 13 years at the time of incident. Further P.W. 2 has categorically stated that the eldest sister of the victim is 21 years, who is married and her second elder sister is 18 years, studying in class XI thereafter one elder brother of the prosecutrix and the prosecutrix is the youngest child in the family. This fact itself is a indicative of the fact that the prosecutrix was minor at the time of incident. It has been further corroborated by the medical evidence tendered by the P.W. 9 (supplementary report) and P.W. 4 who conducted the X-ray and opined the age of the prosecutrix as 15 years. Taking two years variance of either side if it is taken to be in favour of the accused, it comes 17 years, therefore, it is proved fact that she was minor below 18 years at the time of incident.

According to the defence the victim was major at the time of incident. According to radiological report, the age of the victim was found to be 15 years. No documentary evidence regarding age of the victim is available on record. Regarding the medical assessment on the rediological observation in the case of Jaya Mala Vs. Home Secretary, Government of J.K. MANU/SC/0031/1982 SC page 1297 Hon’ble Supreme Court held that:

“It is notorious and one can take judicial notice that the margin of error in age ascertained by rediological examination in two years on either side. Further, in the offence of rape as defined under section 375 IPC, the sexual intercourse should have been against the will of woman or without her consent, if she be of 16 years or above her consent can not be presumed and inference as to consent can be drawn if only based on evidence or probabilities of the case. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent has to be believed and accepted like any other testimony unless there are material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable. Intrinsic quality and inherent probability is the basis of believing the testimony of witness. The present law in view of Section 114-A Evidence Act that if the fact of sexual intercourse is proved and the victim says that she did not give consent to that act, onus shifted to the accused to show that prosecutrix was consenting party”.

In State of U.P. Vs. Chhotey Lal 2011(2) SCC page 550 Hon’ble Apex Court observed that, “consenting” means consent of will and submission under the influence of fear or terror can not amount to real consent. To quote the relevant extract, the court in a long line of cases has given vider meaning to the word “consent” in the context of sexual offence as explained in various judicial dictionaries.

The word consent has been explained as an act of reason, accompanied with deliberation, the mind weighing as in a balance, the good or evil on either side. It is further stated that consent supposes three things – the physical power, a mental power and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition circumvention, surprise or undue influence, it is to be treated as delusion and not as a deliberate free act of the mind.

“Consent” as used in the law of rape means consent of the will and submissions under the influence of fear or terror can not amount to real consent. In the instant case victim is of 15 years of age and she clearly stated that she was subjected to sexual intercourse forcibly by accused putting her in fear and by tying her hands with rope, she was not a consenting party. She had no opportunity to escape from the clutches of the accused. I find the evidence corroborated in a material particulars. Testimony of P.W. 1 found to be trustworthy, reliable, impeachable and believable. She was put under lengthy cross examination and the trial court found her to be reliable. I find no reason to disbelieve or discredit her testimony. The mother would not ordinarily scribe a false story of sexual assault involving her own unmarried minor daughter and thereby putting at stake the reputation of the family and jeopardizing the marriage life of the daughter. I find that the testimony of victim is reliable and gives support to the narration of the incident.

It is very settled that a prosecutrix complaining of having been a victim of offence of rape is not an accomplice after the crime. There is no rule of law that her testimony can not be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimonies of the other witnesses. The learned counsel for the appellant argued that medical report does not support the prosecution case, no injury was found on her private part or nowhere else on the person of the victim. Victim was having full opportunity to raise the out cry to seek the help of passerby to escape from the custody of the accused. She never made an effort to escape or protest, so she was a consenting party and no rape was committed on her. In this connection, it is important to mention here that in this case FIR was lodged after about ten days of the incident in spite of herculean task be made to lodge an FIR and in this case medical was conducted after ten days of the incident i.e. on 29.10.2011. The evidence of the victim of sex offence is entitled to great weight medical corroboration is not sine-qua-non for conviction of rape. The totality of the circumstances appearing on record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the accused-appellant. Further the defence has stated that the accused was falsely roped in the case due to election rivalry and further in order to get the shop premises of the accused vacated which situate in front of her mother’s betel shop found to be not acceptable. Therefore, I find no force in the contention of learned counsel for the appellant that the prosecutrix was consenting/willing party.

Upon evaluation of the evidence available on record, I am satisfied to hold that testimony of the prosecutrix inspires confidence and trustworthy. She is a witness of truth and other evidence available on record lends assurance to her testimony. The trial court has rightly concluded that sexual assault amounting to rape was committed on her by the accused appellant. Further the trial court was justified giving the conclusion that victim was not a consenting party.

So far as the last argument of the learned counsel for the accused-appellant with regard to the quantum of sentence and giving him the benefit of section 376(1) proviso is concerned, I find that there is no adequate reason to give the benefit of the proviso in this case. It is pertinent to mention that in State of Rajsthan Vs. Vinod Kumar Criminal Appeal No. 1887 of 2008 Judgement dated 18.05.2012 in page 20 held that. “Thus, the law on the issue can be summarised to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim are not the relevant factors for determining the quantum of punishment. The court has to decide the punishment after considering all aggravating and mitigating factors and the circumstances in which the crime has been committed. Conduct and state of mind of the accused and age of the sexually assaulted victim and the gravity of the criminal act are the factors of paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case. The power under the proviso is not to be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation. The legislature introduced the imposition of minimum sentence by amendment in the Indian Penal Code w.e.f. 25.12.1983, therefore, the courts are bound to bear in mind the effect thereof.

The court while exercising the discretion in the exception clause has to record “exceptional reasons” for resorting to the proviso. Recording of such reasons is sine qua non for granting the extraordinary relief. What is adequate and special would depend upon several factors and no straight jacket formula can be laid down.

After giving my anxious consideration to the aforesaid facts, circumstances and the submissions raised by both the parties, I am not convinced and inclined to invoke my extra ordinary jurisdiction in reduction or modification of the sentence. For securing the ends of justice to both the parties, I decline to grant relief as contained in Section 376(1) Proviso of the IPC.

Accordingly the impugned judgement of conviction and order of sentence awarded by the court below is hereby confirmed and maintained and appeal is dismissed.

The appellant is in jail. He need not to surrender.

Let the certified copy of this judgement along with lower court record be sent to court concerned for information and necessary compliance.

Order Date :- 27.07.2018

RPD

 

 

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