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Gaya Prasad vs State Of U.P. on 30 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 60 Reserved

Case :- CRIMINAL APPEAL No. – 5421 of 2013

Appellant :- Gaya Prasad

Respondent :- State Of U.P.

Counsel for Appellant :- C.P. Tiwari,Faizur Rahman,Kamlesh Kumar Tripathi

Counsel for Respondent :- Govt. Advocate,Amitabh Tripathi

*******

Hon’ble Ravindra Nath Kakkar,J.

This criminal appeal has been preferred against the judgment and order dated 08.10.2013 passed by learned Additional Sessions Judge, Court No.6, Kanpur Dehat/Ramabainagar in Session Trial No.187 of 2011 (State Vs. Gaya Prasad) arising out of Case Crime No.121 of 2011, under Section 376 I.P.C., Police Station Rajpur, District Ramabainagar, whereby the appellant was convicted for 7 years R.I. under Section 376 I.P.C. and with a fine of Rs.15,000/- and in default of payment of fine to undergo one year further simple imprisonment.

Prosecution story, in brief, is that victim herself lodged an FIR on 05.02.2011 stating therein that in the night of 2/3.2.2011 at about 3.00 a.m. her maternal father-in-law Gaya Prasad called her at a government tubewell situated in Kamalpur for irrigating her field. Further allegation is that husband of the victim was not present at his house and when she reached to irrigate her field the accused, who is maternal father-in-law, called her and taking the advantage of being loneliness committed rape on her. On the basis of written report scribed by one Pappu Yadav FIR was registered as Crime No.12 of 2011, under Sections 376, 506 I.P.C. at Police Station Rajpur, District Ramabai Nagar. Its G.D. entry has been made as Rapat No.29 at 15.30 p.m. Investigation was conducted by Station Officer Chatrapal Singh and after completion of the investigation charge sheet against the accused under Sections 376, 506 was filed before the competent court. The case was committed to Session Court by Chief Judicial Magistrate. The learned trial court framed charges against the accused under Sections 376, 506 I.P.C.

In support of the prosecution case victim was examined as P.W.1, who proved the written report Ex.Ka-1. Fact witnesses P.W.2 Rajkumari, P.W.3 Pappu Yadav were examined. In support of the medical evidence P.W.4 Dr. Pushpa Gurnani was examined who proved the medical report Ex.Ka-2 and supplementary report Ex.Ka-3 and in support of the police papers P.W.5 – S.I. Chatrapal Singh, Investigating Officer, was examined who proved site plan Ex.Ka-4 and charge sheet Ex.Ka-5. P.W.6 Constable Atar Singh was examined to prove chik FIR Ex.Ka-6 and its G.D. Ex.Ka-7 and fard of the material exhibit peticot Ex.Ka-8. After close of the prosecution evidence, statement under Section 313 Cr.P.C. of Gaya Prasad – appellant was recorded. Accused-appellant denied the charges levelled against him and claimed trial. After hearing the arguments of both parties, learned trial court convicted the accused as aforesaid. Aggrieved against the same, this appeal has been preferred.

Learned counsel for the appellant submits that the impugned judgment is illegal, perverse and based on surmises and conjectures. It is next contended that medical conducted by Dr. Pushpa Gurnani -P.W.4 has not found any mark of injury and the doctor was not sure whether the rape was committed or not. No definite opinion has been tendered with regard to rape by the doctor. It is next contended that there was no motive for the appellant to commit such offence and there are contradictions in the statements of P.W.1 (victim) and P.W.4. Lastly contended that appellant was falsely implicated due to some civil dispute and election (Gram Pradhan) rivalry between appellant and husband of prosecutrix.

Rebutting the above arguments, learned A.G.A. supported the judgment of conviction and order of sentence and submitted that prosecutrix is a lady and close relative of accused who taking advantage of her relations and knowing that the husband of the prosecutrix is not at home called her in the fateful night of the incident for irrigating her agricultural field. When the prosecutrix/victim reached to her agricultural filed, the accused taking advantage of loneliness committed rape upon her. He further submits that the impugned judgment of conviction and order of sentence is well reasoned and neither there is any infirmity, illegality or perversity in passing the impugned judgment of conviction. Learned trial court taking a lenient view awarded only 7 years rigorous imprisonment. He further submits that keeping in view the facts, circumstances and the evidence tendered before the lower court along with material exhibits peticot and the medical report, no interference is required.

I have considered the submissions advanced by both the parties. As I have already stated that P.W.1 -victim is closely related to the accused appellant and in her statement before the court she had specifically and categorically stated that she was called by her maternal father-in-law Gaya Prasad for irrigating the victim’s agricultural field at night. It has been further stated that her agricultural field situated near to the agricultural filed of her maternal father-in-law Gaya Prasad. When she reached at her agricultural field at about 3 p.m. (night), the accused took the advantage of her loneliness and committed rape on her. It is relevant to mention that it transpires from her statement that initially on being called on telephone she categorically stated that her husband and dever were not at her house, but the accused gave assurance to her in irrigating the field and the victim thought that if her field would not be irrigated then it might be damaged. It is also a relevant point to be noted that after commission of offence the victim reached to place of P.W.2 Rajkumari, who happens to be her jethani, and narrated the whole incident to her at about 4/4.30 a.m. P.W.2 Raj Kumari (jethani) of the prosecutix was examined in this case who also narrated the incident as stated by victim-P.W.1. From the statements of P.W.1 and P.W.2 it transpires that in the absence of her husband the report was written by one Pappu Yadav on the dictation of victim and the FIR was got registered after two days of the incident by stating police to inquire the matter. So the contention that the FIR is delayed one has not been substantiated as the same has been explained. Further it transpires from the record that peticot which was worn by the prosecutrix was taken in possession by the police and was sent to forensic science laboratory and its report found to be in support of commission of rape on the prosecutrix. In this way, the evidence of the prosecutrix herself is found to be believable and further to some extent supported by the statement of P.W.2 Raj Kumari, jethani of the victim. Further there is corroboration of the physical evidence, i.e. peticot and report of the F.S.L.

The contention of the learned counsel for the accused is that it might be possible that the human sperm found on the peticot may be that of husband of the prosecutrix. This contention has no force because this fact is cogently established that on the date of incident the husband was not with prosecutrix and on information being given to him he came back to his residence. So in the absence of her husband on the date of incident, which is proved by the prosecution, leads to only one inference, i.e., commission of rape by her own maternal father-in-law. Further I have already stated that the contention of the learned counsel for the appellant on the point of delay in lodging the FIR has got no substance as it has been explained by the statement of P.W.1 -victim herself.

So far as the contention of the learned counsel for the appellant that the accused has been falsely implicated in this case due to property dispute or the election dispute, it has no merit and ex facie discarded in the absence of any defence evidence to this effect.

Learned counsel for the accused vehemently argued that the medical evidence does not support the prosecution case as no definite opinion has been recorded by the doctor with regard to the injuries inflicted on the body of the prosecutrix and no definite opinion of rape has been mentioned. Before examining this aspect, it would be relevant to mention that in State of Rajasthan Vs. Om Prakash, 2002 (2) JIC Page 870 (Crime), 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. Presence of injuries are not always sine qua non to prove the charge of rape.”

Further there are catena of decisions of Hon’ble Apex Court that it is necessary for the court to have a sensitive approach when dealing with the cases of rape. It is also trite that in the case of State of Himpachal Pradesh Vs. Dharmapal, (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. character, reputation, dignity and honour.”

In the light of the above said legal propositions it would be relevant to mention that the rapist in this case is a real maternal father-in-law. It is also credibly, cogently and with the clinching evidence established that in the absence of husband and devar in the house of the prosecutrix, the accused, who is a maternal father-in-law, called her to irrigate her agricultural field which was adjacent to the agricultural field of accused and also gave assurance to her to provide help for irrigating the field. On being called, the prosecutrix reached to the place and taking advantage of her loneliness her real relative has committed rape. In these facts and circumstances, in an ordinary prudence it cannot be said to be a case of false implication. In this case it is not only the evidence of P.W.1 but immediately after commission of rape, the prosecutrix narrated the whole incident to her jethani who was produced by the prosecution as P.W.2 and there is a physical evidence also, i.e. peticot, which was worn by the victim at that time, sent to FSL which confirms the presence of human sperm on her peticot. It is pertinent to mention here that on the sole testimony of prosecutrix, the conviction is sustainable in the eye of law without any corroboration of the medical evidence.

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.

On the point of sentence that the maximum sentence awarded by the trial court is of 7 years imprisonment and Rs.15,000/- as fine and further compensation of Rs.8,000 has been awarded in favour of prosecutrix, learned counsel has drawn our attention to the report of concerned jail authorities dated 13.2.2018 that the accused appellant after completion of his sentence and depositing the fine awarded has been released from jail on 14.2.2017 and this fact has also been admitted by the learned A.G.A. So it is made clear that since the accused-appellant has already served the sentence order of the trial court, he need not to surrender before the court below. It is, however, made clear that out of realized fine Rs.8000/- has to be given as compensation to victim/prosecutrix. The court below is directed to comply with this order.

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

Order Date :- 30.05.2018

Anand/-

 

 

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