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Gopal Kumar vs State Of U.P. on 13 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED

Court No. – 64

Case :- CRIMINAL APPEAL No. – 1032 of 1983

Appellant :- Gopal Kumar

Respondent :- State of U.P.

Counsel for Appellant :- A.N. Srivastava,A.D. Srivastava

Counsel for Respondent :- A.G.A

Hon’ble Raj Beer Singh,J.

1. This criminal appeal has been preferred against Judgement and order dated 22.04.1983 passed by learned XIVth Additional District Sessions Judge, Kanpur in Session Trial No. 302/M/92 (State Vs. Gopal Kumar) under Sections 376 I.P.C., however, appellant was released on Probation of Good Conduct for a period of two years and he was sentenced to fine of Rs. 1000/-.

2. As per prosecution version, the first informant namely, Shiv Prasad Dubey was tenant on 4th floor of the premises belonging to maternal grandfather of accused-appellant. On 29.04.1982 at about 11:00 A.M. daughter of the first informant, aged about 7 years (hereinafter to referred to as “X”) had gone to play on ground floor. After sometime, first informant heard cries of “X” and he along with Santosh Kumar, Kalka Prasad and his wife Urmila Devi came on that floor and peeped through window inside the room and saw that “X” was crying and lying flat, whereas the appellant-Gopal was committing rape upon her. Shiv Prasad and others knocked the door but after opening the door, accused-appellant Gopal Kumar ran away after pushing them. They saw blood was oozing out through private part of “X” and there was a wound on vulva of “X”.

3. First informant lodged first information report exhibit Ka-8 by submitting written complaint exhibit Ka-1 at Police Station Sisa Mau, Kanpur on the same day vide G.D. entry no.23. Victim “X” was sent for medical examination at Duffrin Hospital, Kanpur. As per M.L.C. Exhibit Ka-6 “X” following observations were noted by doctor regarding condition of “X”:-

“Pt. is conscious.

Mark of fresh injury on head, trunk limbs present. Local Examination- Pubic hair not developed. Staining of clotted blood is present on the medical side of thighs vulva. Perineum is torn at 6’O clock position. Size of tear is 1/2″ X 1/4″. Fresh bleeding is present from the tear. Hymen is torn from 4′ O to 7’O clock position. Fresh bleeding is present. Blood clott about 15 cc from vagina removed. P/S exam. A tear in post vbaginal wall is present of about 1.5″X1/4″. Fresh bleeding is present. Vaginal smear is full of RBC.

Clothes which were stained with blood left at home. The girl needs medical surgical treatment so she has been admitted in the hospital. According to my opinion rape has been committed upon “X” (name withheld) Dheeraj Dube and for the confirmation of the age, she will be send to radiology department, UHM Hospital, Kanpur where she improves. The findings of wt. will be given along with supplementary report.”

4. P.W.3 Sub-Inspector Chotey Lal Chaturvedi started investigation. Clothes of “X” were taken into possession and site plan of the spot was prepared. One Dhoti, Asni, screw driver and nails found on the spot were seized. Blood stained clothes of victim “X” were sent for FSL examination. The statements of witnesses were recorded. After completion of investigation, accused-appellant Gopal Kumar was charge sheeted under Section 376 I.P.C., vide charge sheet exhibit Ka-5.

5. Learned trial Court framed charge under Section 376 I.P.C., against accused-appellant. In order to bring home guilt of accused, prosecution has examined five witnesses. Accused-appellant was examined under Section 313 Cr.P.C., who claimed that at the time of incident, he was Juvenile.

6. After hearing and analysing evidence on record, the accused-appellant Gopal Kumar was convicted under Section 376 I.P.C., and sentenced as stated in paragraph no.1 of the Judgement. Being aggrieved, appellant has preferred instant criminal appeal.

7. Heard Sri N.K.Srivastava learned counsel for the appellant and Sri Amit Singh Chauhan learned A.G.A. for the State.

8. It was argued by learned counsel for the appellant that prosecution evidence is not reliable and that if any, such incident might have taken place, it was not possible that accused-appellant could have succeeded in running away from the spot. No independent eye-witness was examined and that conviction of the accused-appellant is not based on evidence and thus liable to be set aside.

9. Per contra, it has been argued by learned A.G.A. for the State that there is reliable and credible version of “X”, which has been corroborated by other witnesses and the same has also been supported by medical evidence. Testimony of these witnesses cannot be disbelieved merely on the ground that no independent witness has been examined. It was further submitted that conviction of the appellant is based on evidence.

10. Perusal of record shows that after recording its satisfaction regarding competency and rationality of “X” regarding her capacity to make a statement, her statement was recorded by trial Court as P.W.1, wherein she has deposed that on the day of incident, she has gone to play on ground floor and she was asked by sister of accused-appellant to give nails and screw driver to the accused-appellant, who was installing some calender in a room. Accordingly, she went to upper floor into room but accused-appellant closed the door and he made her to lie on floor, removed her clothes and under garments and committed rape upon her. When she tried to raise an alarm, her mouth was shut by hands and he threatened that if she raised alarm, she would be killed, however, hearing the cries, her mother, father, grandfather and maternal uncle have reached on the spot. The accused-appellant wore his clothes and ran away from the spot. She had also deposed that she was bleeding and her clothes were also stained with blood and that after the incident, she was medically examined. P.W.1 “X” has been cross examined by defence but no such fact could emerge in her cross examination so as to create any doubt regarding authenticity of her version. In fact she has been subjected to lengthy cross examination but she remained firm. Version of P.W.1 that hearing her cries, her parents and other person have reached on the spot but that accused-appellant ran away from spot, has been amply supported by P.W.2 Shiv Prasad, who is the father of “X” and no material contradiction or infirmity could be pointed out in his testimony. P.W.2 has clearly stated that on 29.04.1982 at about 11:00 A.M. his daughter “X” had gone to ground floor for playing and after hearing her cries, he along with other persons reached at the room, from where the cries were coming. They peeped inside the room and saw that accused-appellant was committing rape upon “X” and when he knocked the door, accused-appellant ran away after pushing them. Prosecution version is further supported by statement of P.W.4 Dr. Santosh Gupta, who has examined the victim “X”. The condition of victim “X” as noted in M.L.C. by P.W.4, as stated above, clearly supports the prosecution version that “X” was subjected to rape.

11. In case of Sham Singh Versus The State of Haryana, Criminal Appeal No. 544 OF 2018, decided on 21.082018, Hon’ble Apex Court held:

” We are conscious that the courts shoulder 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. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. (see State of Punjab vs. Gurmit Singh, (1996) 2 SCC 384 (para21)).

It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not,unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (see Ranjit Hazarika vs. State of Assam, (1998) 8 SCC 635)”.

12. The basic principle regarding appreciation of evidence of a victim of rape is that the evidence of prosecutrix should be evaluated at par with that of an injured person. Normally, no girl or her parents would come forward to make humiliating statement against the honour of the girl, therefore, the evidence of the prosecutrix and her parents should not be discarded lightly. The testimony of the victim in case of sexual offence is vital and unless there are compelling reasons which necessitated looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of the victim of sexual assault.

13. In the instant case no doubt X was aged about 7 years at time of her deposition but she is victim of the ordeal of rape. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eye-witness. It is well settled that evidence of the child witness can not be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of P.W. 1 cannot be discarded only on the ground of her being of teen age. she has stood the test of cross-examination and there is no infirmity in her evidence. Some discrepancies in the statement of a child witness cannot be made the basis of discarding the testimony. In view of attending facts and circumstances there is no possibility of her being tutored. The Supreme Court in the case of Aman Kumar Anr vs. State of Haryana, (2004) 4 SCC 379 had observed as under:

“5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice.”

14. In the instant case, considering the entire evidence on record, it is apparent that testimony of P.W.1 and P.W.2 is consistent and cogent and inspires confidence. At the time of incident “X” was merely aged about 7 years and there is no reasons to believe that “X” or his father would depose falsely against the accused-appellant by making such allegations against the accused-appellant. Further, evidence of PW1 “X” has been corroborated by P.W.2 Shiv Prasad and it has been further supported by medical evidence.

15. In view of the aforesaid facts and circumstances of the case, testimony of P.W.1, P.W.2 cannot be disbelieved merely on the ground, that some independent witness was not examined. Alleged incident took place, when victim has gone for playing, where the first informant was residing along with family as a tenant whereas the accused-appellant is a grandson of the landlord, and he was also residing in the same premises. In such facts and circumstances of the case, prosecution is not obliged to examine any independent witness. Even otherwise also, it is well settled position of law that if testimony of victim of rape is credible and inspires confidence, the same may be acted upon without any corroboration whereas in the instant case, conviction of the accused-appellant is based on overwhelming evidence. There is no such law that testimony of victim of rape cannot be acted upon without corroboration by independent witness or some other witness. Similarly, testimony of P.W.1 and P.W.2 could also not be disbelieved on the ground that the accused-appellant could not be apprehended at the spot. P.W.2 has made clear statement that when he knocked the door, accused-appellant opened the door and ran away after pushing him.

16. Considering the entire evidence carefully, it is apparent that conviction of accused-appellant is based on evidence and that the accused-appellant was rightly convicted by the trial Court.

17. So far as question of sentence is concerned, the accused-appellant was found juvenile and in view of provisions of U.P.Children Act (as applicable at that time), accused-appellant was released on probation of good conduct for a period of two years along with fine of Rs. 1000/- Thus, the period of probation of accused-appellant has already been undergone.In view of these facts, no interference is called for in sentence. If the amount of fine of Rs. 1000/- has not been deposited by the accused-appellant so far, he shall deposit the same within a period of 45 days from today.

18. In view of aforesaid, the instant appeal is dismissed.

19. Office is directed to transmit the record of trial Court as well as copy of the judgement to the Court below.

Order Date :- 13.02.2020

S.Ali

 

 

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