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Bobby @ Mukesh vs State Of U.P. on 16 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 60 Reserved

Case :- CRIMINAL APPEAL No. – 858 of 2007

Appellant :- Bobby @ Mukesh

Respondent :- State Of U.P.

Counsel for Appellant :- Sanjay Mishra,M.P.S. Chauhan,R.D.Daholia A.C.

Counsel for Respondent :- Govt. Advocate

*******

Hon’ble Ravindra Nath Kakkar,J.

This criminal appeal has been preferred against the judgment and order dated 12.01.2007 passed by learned Additional Sessions Judge, Court No.14, District Aligarh in Session Trial No.647 of 2002 (State Vs. Bobby @ Mukesh), under Sections 376 I.P.C., Police Station Gandhi Park, District Aligarh, by which the appellant was convicted and sentenced to eight years R.I. under Section 376 I.P.C. with a fine of Rs.2000/- and in default of payment of fine to undergo four months additional imprisonment.

Prosecution story, in brief, is that complainant Shanta, wife of Umesh, lodged an FIR stating therein that on 9.4.2002 at about 10.00 a.m. complainant had gone to her brother’s residence and her husband went for labour work. Her small kids were alone in the house. Accused Bobby @ Mukesh came to her residence and allured her daughter (prosecutrix) Deepa, who was aged about 10 years, and took her to the old toilet situated behind Dharm Samaj Degree College and committed rape upon her. The prosecutrix narrated the entire story to her mother when she came back. At that time accused Bobby @ Mukesh escaped from his house. On the basis of written report Ex.Ka-1 by one Anand Shastri FIR was registered. After completing the investigation charge sheet Ex.Ka-6 under Section 376 I.P.C. was submitted in the court. The case was committed to the Sessions Court by the learned Chief Judicial Magistrate, Aligarh. Charge framed against the accused applicant under Section 376 I.P.C. was denied by the accused and claimed trial.

In support of the case prosecution examined Smt. Shanta (complainant/mother of victim)- P.W.1, Km. Deepa (prosecutrix) – P.W.2, Dr. S.K. Jain (Radiologist)- P.W.3, Constable Daya Chandra – P.W.4, Dr. Poonam Sharma- P.W.5, Saleem Khan (Investigating Officer) – P.W.6. After close of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded who claimed that he has been falsely implicated in this case.

P.W.1 Smt. Santa – complainant/mother of victim has stated before the court during trial that the incident took place at 10.00 a.m. and at that time she was not at her house as she went to the house of his brother. Her husband was out for labour work and only small kids were at her house. Accused Bobby @ Mukesh came to her residence and allured her daughter Deepa, aged about ten years, and committed rape on her in the old toilet situated behind Dharm Samaj Degree College. She further stated that on being resistance accused closed the mouth of the victim and after commission of crime he left prosecutrix adjacent to her house. When complainant returned back to her house, the prosecutrix narrated the entire incident to her mother. Thereafter complainant lodged the report of the incident scribed by one Anand Shastri. This witness has proved written report Ex.Ka-1 available on record. She further stated that medical examination of the prosecutrix was conducted by the Doctor and clothes of the prosecutrix was taken into custody by the police. Fard Ex.Ka-2 was proved by this witness.

P.W.2 prosecutrix Km. Deepa, in her statement, stated that incident is of 10.00 a.m. and at that time her mother was not at home as she went to her maternal uncle and her father went for labour work as rickshaw puller. She further stated that there are four brother and sister and at the time of incident her age was about 10 years and other brother and sister were younger to her. Accused came to his residence at about 10.00 a.m. (morning) and after alluring took her to the old toilet situated behind Dharm Samaj Degree College and after forcibly torn her clothes committed rape upon her. She narrated the entire incident to her mother. Her mother took her to police station where FIR was lodged and she was sent for her medical examination through lady constable. Further stated that her clothes were taken into custody by the police at police station and its fard was prepared and proved as Ex.Ka-2 which is on record. She has categorically stated that accused Bobby was known to her and resides in the same locality.

P.W.3 Dr. S.K. Jain in his statement proved the radiological report, which is Ex.Ka-3, x-ray plate no.1584 which is Ex.1 and stated that epiphysis of humerus radius ulna of the wrist was not fused; epiphysis of radius and ulna of the elbow joint was not fused; epiphysis of femur, tibia and fibula were not joint.

Constable Daya Chandra – P.W.4 was examined to prove the chik FIR and its entry in G.D. are Ex.Ka-4 and 5 on record.

P.W.5 Dr. Poonam Sharma stated in her statement that on 12.04.2002 she examined prosecutrix Km. Deepa where she found ruptured hymen on the position of 3 o’clock and tenderness on her private part. Medical report is Ex.Ka-4 and thereafter on 6.5.2002 X-ray report on the basis of the medical report and smear report a supplementary report was prepared. According to x-ray report right elbow, right kneee and right wrist were found to be not fused and the age of the prosecutrix established to be eight years. Further according to vaginal smear report, spermatozoa was found and supplementary report Ex.Ka-5A is proved by this witness.

P.W.6 Saleem Khan, who investigated the case, was examined in this case by the prosecution who on the basis of the medical report, supplementary report, statement of witnesses, filed charge sheet against the accused under Section 376 I.P.C. Ex.Ka-6 which has been proved by this witness.

Heard Shri R.D. Daholia, learned amicus curiae for the appellant and the learned A.G.A. for the State.

Learned amicus curiae for the appellant submits that the impugned judgment is illegal, perverse and based on surmises and conjectures. It is further submitted that there is inordinate delay in lodging the FIR. It is next submitted that it grows from the evidence tendered by the prosecution that after the occurrence the appellant had left the victim at her house. It is lastly contended that accused appellant has been falsely implicated in this case as prior to this incident there was an altercation between the mother of the victim with his brother Bharat and at that time a threat was made by the complainant to face the dire consequence and on that account accused has been falsely implicated in this case.

Per contra, learned A.G.A. contended that medical evidence is in support of the ocular testimony and on the basis of the statement of the prosecutrix as well as the complainant, charge against the appellant has been fully proved beyond reasonable doubt and it is a rape case with a girl child aged about eight years. It is next submitted that the impugned judgment is well reasoned and based on material available on record so it requires no interference.

Before proceeding to examine the legality and correctness of the impugned judgment of conviction and order, I would like to refer established legal propositions. In the case of State of Rajasthan Vs. Om Prakash, (2002) 2 JIC 870 SC, Hon’ble Apex Court held that “there is no force in the contention that if there was any forcible sexual intercourse, it would have resulted in some injuries upon the prosecutrix. The presence of injuries are not always a sine qua non to prove a charge of rape. It has to be kept in mind that the case under consideration is of rape on a girl child aged eight years and not on a grown up woman.” Hon’ble Apex Court further held that “child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. It is a crime against humanity. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country’s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. It is necessary for the courts to have a sensitive approach when dealing cases of child rape. The effect of such a crime on the mind of the child is likely to be life long. On subject safeguard has been provided for children in Constitution of India under Article 39.”

In Rameshwar Vs. State of Rajasthan, 1952 SCR Page 377, Hon’ble Apex Court held that “The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.”

In State of H.P. Vs. Dharampal, 2004 (9) SCC Page 681, Hon’ble Apex Court held that “rape is a serious offence as it leads to an assault on the most valuable possession of a woman, i.e. their character, reputation, dignity and honour.”

In Guddu @ Raghvendra, Arjun Singh Vs. State of U.P., 2016 Criminal Law Journal 1314, this Court held that “The offences relating to the sexual assault are taken to be very heinous offence. These offences have a great impact on the social status, prestige of the family of the victim as well as it has impact on the dignity, reputation and prestige of the victim. The reputation, psychology image of the victim is always at jeopardy in the event of victimization of sexual assault in her known circle. After such incident normally a mature decision is taken by the family members about lodging of the FIR. Sometimes because of the social prestige and social constraint, such offence even go unreported to the police. It will neither have adverse impact on the authenticity of the FIR nor would be fatal for prosecution.”

It the light of the aforesaid submissions and the legal propositions, as stated above, I find that the incident is of day time at about 10 a.m. on 09.04.2002 and the report was lodged by the mother of the victim Smt. Shanta at about 2.00 p.m. on 12.4.2002. It transpires from the record that at the time of incident the complainant had gone to her brother’s residence and it is proved fact that complainant is a poor illiterate lady and it is a general prudence that in such type of cases generally the family members are reluctant to lodge FIR. The age of the prosecutrix found to be eight years and the accused took the benefit of the circumstances that he found prosecutrix alone in her house alongwith her younger brother and sister and he took the victim and committed rape in the old toilet situated behind Dharm Samaj Degree College which is adjacent to the house. Under these facts and circumstances if there is delay in lodging of FIR of three days I am of the view that it was not fatal to the prosecution to adversely effect the core of the prosecution case.

Smt. Shanta, who is mother of the prosecutrix, has categorically stated the whole incident in her testimony. She was cross examined at length but nothing adverse arose out of her evidence to disbelieve or discredit her statement and further prosecutrix herself was examined as P.W.2 who narrated the whole story as stated in first information report specifically with regard to the date, time and place of incident and forcibly commission of rape on her body by the accused appellant. She too was cross – examined but nothing adverse has come out in her statement. In this way I found that P.W.2 prosecutrix victim who is of a tender age about 8 years supported by the testimony of P.W.1 Smt. Shanta was itself sufficient to sustain the conviction order. Further it is relevant to mention that P.W.5 Dr. Poonam Sharma has been examined and spermatozoa was found in vaginal smear report and supplementary report Ex.Ka-5A is proved by this witness. She further substantiated the age of the prosecutrix and the position of the hymen stated in the medical report found in 3 o’clock position and the tenderness found in the private part of the prosecutrix is itself indicative of the fact that the rape was committed on her by the accused. In this way medical report, radiological report, statement of P.W.3 Dr. M.K. Jain, Radiologist and P.W.5 Dr. Poonam Sharma further corroborates the prosecution version. So far as the submission that the accused appellant was falsely implicated in this case due to enmity, I found no substance in this argument because no defence evidence has been produced in this case. Further a suggestion given to P.W.1, P.W.2 by the defence during trial to the witnesses is to the effect that there was some money due on the complainant’s husband which was to be recovered, on account of which some altercation took place for returning the same. On the other hand, in the statement recorded under Section 313 Cr.P.C. it has been stated that altercation took place with the mother of the victim and his brother Bharat before this incident and that is why he was falsely implicated. So there is contradiction itself on the part of the defence which goes to disbelieve the defence.

On the point of sentence learned amicus curiae stated that the maximum sentence awarded by the trial court is of 8 years imprisonment with a fine of Rs.2000/-. Learned counsel has drawn our attention to the report of the jail authorities dated 28.03.2018 that the appellant has been released on 18.12.2009 after completion of his sentence awarded by the trial court. This fact is admitted by the learned A.G.A.

For the aforesaid reasons, the findings of conviction and order of sentence recorded by the trial court against the accused appellant for the offence under section 376 I.P.C. is hereby confirmed and maintained. The appeal is accordingly dismissed.

Let a certified copy of the judgment along with original record be transmitted to the court concerned/jail authorities for compliance, if any.

I appreciate the assistance of Shri R.D. Daholia, learned amicus curiae, who has appeared and argued on behalf of appellant. Registry is directed to pay fees to Shri Daholia, amicus curiae, as per rules at the earliest.

Order Date :- 16.05.2018

Anand/-

 

 

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