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Jawahir Chero vs State Of U.P. on 12 January, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. 63

Case :- JAIL APPEAL No. – 877 of 2016

Appellant :- Jawahir Chero

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail

Counsel for Respondent :- A.G.A.

Hon’ble Krishna Pratap Singh,J.

This jail appeal has been filed against a judgement and order dated 21.12.2015 passed by the Additional Sessions Judge, Fast Track Court, Sonebhadra in ST No. 13 of 2012, under sections 363, 366, 376 IPC, Police Station Manchi, district Sonebhadra. By the impugned order the learned Additional Sessions Judge has convicted and sentenced the appellant Jawahir Chero to five years rigorous imprisonment and a fine of Rs. 10,000/- (rupees ten thousand) under section 366 IPC and seven years rigorous imprisonment and a fine of Rs. 15,000/- under section 376(1) IPC. In default of payment of fine, the appellant was further directed to undergo one year rigorous imprisonment under section 366 IPC and six month rigorous imprisonment.

However, all the aforesaid sentences were directed to run concurrently.

It was also directed that out of the said order that Rs. 15,000/- (rupees fifteen thousand) shall be paid to the victim as compensation under section 357 Cr.P.C.

In short compass the facts giving rise to the present appeal are that the complainant Deep Narain has handed over a written report on 24.2.2010 at the police station Manchi to the effect that after taking meals when he was sleeping in his hut along with his wife and children, at about 11.00 PM, Jawahir came to his hut and asked for meals. After taking the meals, he has enticed away his daughter aged 17 years towards the Jungle. The complainant along with his daughter made a search, but she could not be traced out. In the morning he along with other co-villagers also made a search of her daughter, but she could not be traced out. In the evening, he came to know that the accused-appellant left his daughter in the jungle of Devdhad, police station Kone, from where his daughter has gone to the house of his Sadu (wife’s sister husband). (Ext. Ka-3).

On the basis of the aforesaid report, a case was registered at case crime No. 2 of 2010, under sections 363, 366 IPC by Clerk Constable Ram Pyare Yadav, PW-5, Ext. Ka-5. He also made necessary GD entry, Ext. Ka-6.

After the registration of the case, the case was entrusted to Shri Subhash Chandra Yadav, PW-6. He recorded the statement of the complainant under section 161 Cr.P.C on 27.2.2010. He also inspected the place of occurrence on the pointing out of the complainant and prepared site plan. As on 27.2.2010 the victim along with his mother have gone to Robertsganj to get the medical of the victim, he recorded the statements of the victim and her mother on 28.2.2010 and 01.3.2010. He also got the statement of the victim under section 164 Cr.P.C. recorded. On the basis of the statement of the victim, he added section 376 IPC on 06.3.2010, which was entered in the GD. Thereafter, this witness Shri Subhash Chandra Yadav has been transferred.

After the transfer of Shri Subhash Chandra Yadav, the case was entrusted to Shri Sudhir Kumar Singh, PW-4. In spite of his best efforts, when the accused could not be arrested, he obtained non-bailable warrant from the court concerned and made raid for the arrest of the accused at the suspected place, but accused could not be traced out. This witness, after completing necessary formalities submitted the charge sheet against the accused-appellant on 02.6.2010, which he proved as Ext. Ka-10. He further stated that he has also taken resort to the provisions of sections 82/83 Cr.P.C. However, when the accused was remain untraceable, he submitted the charge sheet against the accused as absconder on 2.6.2010.

However, the accused was arrested on 5.1.2012 during checking, who confessed his guilt.

As the case was exclusively triable by the court of sessions, the learned Magistrate committed the case to the court of sessions.

Learned Additional Sessions Judge vide order dated 07.6.2012 framed the charges against the accused-appellant under sections 363, 366 and 376 IPC.

To bring home the guilt of the appellant, the prosecution as examined as many as six witnesses. PW-1 is Dr. Geeta Jaiswar, who has examined the victim. PW-2, Deep Narain is the complainant of the case. PW-3 is the victim. PW-4 Sudhir Kumar Singh is the second investigating officer of the case. PW-5 is Clerk Constable Ram Pyare Yadav. PW-6 is Subhash Chandra Yadav, is the first investigating officer of the case.

PW-1, Dr. Geeta Jaiswar, has deposed that on 27.2.2010, she was posted as Medical Officer at the district women hospital. On that date she has examined the victim, who was brought by lady constable Usha Kiran Srivastava. This witness deposed that on external examination, no injury was found on her person. She further deposed that on internal examination, hymen of the victim was found torn. Her vagina admits one finger easily. There was no injury on her private part. For determination of her age, she was advised x-ray. Two slides were prepared and were sent to the pathologist. This witness has proved his medical report as Ext. Ka-1.

After receipt of pathological report and x-ray report, this witness has prepared supplementary report, which she proved as Ext. Ka-2. As per pathological report no spermatozoa was found in the vaginal smear of the victim. As per x-ray report the age of the victim was assessed above 18 years.

PW-2 Deep Narain is the complainant of the case. He reiterated the versions given in the first information report. He further further deposed that on the date of incident his daughter, the victim did not return. In the morning, when he was searching his daughter, he came to know that she is in the house of her uncle mausa) at Adgad. The third day, this witness has sent his son to Adgad to fetch his daughter. On her return, the victim told this witness that the accused-appellant took her to Jungle and committed rape with her and left her in Jungle.

PW-3 is the star witness and victim of the case. She deposed that on the date of incident at about 11-12 PM, the accused-appellant, who used to come to her father house, came and requested his father that he is coming from his relative and if there is any meals left, please offer him. On the direction of her father, this witness has given the remaining left meals to the accused-appellant. After the accused-appellant finished his meals, she had gone outside her house to wash the utensils. As soon as she started washing the utensils, accused-appellant came from behind and after stuffing her mouth took her to Jungle on his lap. After threatening her, he committed rape on her several times. When she tried to raise alarm and weep, she was threatened of dire consequences.

The evidence of PW-4 Sudhir Kumar Singh, PW-5, Ram Pyare Yadav and PW-6 Subhash Chandra Yadav have already been discussed above.

After the closure of the prosecution evidence, the statement of the accused under section 313 Cr.P.C. was recorded, in which he denied the occurrence and stated that he has falsely been implicated in this case due to enmity. However, he produced no witness in defence and claimed to be tried.

Learned Additional Sessions Judge, Fast Track Court, Sonbhadra after hearing the learned counsel for the parties and after scrutinizing the evidence on record, convicted and sentenced the appellant as stated in the first paragraph of the judgement.

Heard Shri Avinash Jaiswal, learned amicus curiae for the appellant and learned Additional Government Advocate representing the State and perused the record of the case.

Shri Avinash Jaiswal, learned amicus curiae for the appellant contends that the victim was major and consenting party. Learned counsel further submits that the appellant has falsely been implicated in this case due to enmity. Learned counsel for the appellant also submits that the learned Trial Court has not considered the evidence in right perspective and convicted the appellant on the basis of conjectures and surmises.

Learned Additional Government Advocate supported the finding of the trial court.

Now coming to the first argument of the learned counsel for the appellant that victim was major and consenting party. It is true that as per medical report conducted by Dr. Geeta Jaiswar, PW-1, the age of the victim was found above eighteen years, but so far as consent is concerned, the submission is misconceived. The victim in her statements both under Section 161 Cr.P.C. and 164 Cr.P.C as well as in her evidence have fully supported the prosecution case. She consistently stated that when she was washing utensils, the accused-appellant came from behind and after stuffing her mouth took her to Jungle on his lap and after threatening her, he committed rape on her several times against her wishes. When she tried to raise alarm and weep, she was threatened of dire consequences.

Hon’ble Supreme Court in the Case of State of Rajasthan Vs. Roshan Khan and others, (2014) 2 SCC 476 has held that where sexual intercourse by the accused is proved and the question is whether it was without consent of woman alleged to have been raped, and she states that she did not consent, the Court shall presume that she did not consent.

Hon’ble Supreme Court in State Of Himachal Pradesh vs Asha Ram, 2006 Cri.L.J. 139 has held as under:

“We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.”

In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753, Hon’ble Supreme Court held thus:

In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to translate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile.”

Hon’ble Supreme Court in State Of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 AIR 658, 1990 SCR (1) 115 held thus:

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. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: “It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.”

Victim was put to lengthy cross-examination, but nothing could be elicited so as to make her evidence untrustworthy. There is a complete consistency and coherence in her examination-in-chief and cross-examination.

Now coming to the next contention of the learned counsel for the appellant that the appellant has falsely been implicated in this case.

The appellant in his statement under section 313 Cr.P.C has stated that Ram Prasad, the scriber of the FIR is father-in-law of his cousin. His cousin’s wife occasionally left the house of his cousin. Ram Prasad put pressure on his cousin for keeping his wife, due to which dispute ensued between the parties and he supported his cousin, due to which he has falsely been implicated.

The accused-appellant has produced no defence witness to fortify his claim for false implication. It is pertinent to mention here that it is nowhere pleaded that scriber of the FIR is related to the complainant and the victim. Merely because the cousin of the accused-appellant has some dispute with the scriber of the FIR is no ground to dis-card the whole testimony of the witnesses.

In the Indian society for such baseless feud, no body would stake the life of his unmarried daughter and ruin her rest of the life.

In the case of State of Karnataka Vs. Krishnappa 2000 (2) SCALE 610, Hon’ble Supreme Court pointed out that rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity. The Court held thus:

“The measure of punishment in a case of rape cannot depend upon the social status of the victim of the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status. religion race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achived by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.”

Hon’ble Supreme Court in State of A.P. Vs. Bodem Sundara Rao, 1995 (6) SCC 230, held thus:

“In recent years, we have noticed that crime against woman are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general, but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society’s cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the Courts verdict in the measure of punishment. The Courts must not only keep in view the right of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13-14 years old girl shakes our judicial conscience. The offece was inhumane.”

Hon’ble Supreme Court in Bodem Sundara Rao (Supra) has cautioned the Courts while dealing with the cases of sexual crime against women in the following words:

“Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with the cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.”

In this context it will be useful to quote the following passage from the 84th Report of the Law Commission of India:

” It is often stated that a woman who is raped undergoes two crises- the rape and the subsequent trial. While the first seriously wounds her dignity, curbs her individual, destroys her sense of security and may often ruin her physically, the second is no less potent of mischief inasmuch as it not only force her to re-live through the traumatic experience, but also does so in the glare of publicity in a totally alien atmosphere, with the whole apparatus and paraphernalia of the criminal justice system focused upon her.

In particular, it is not well established that sexual activities with your girls of immature age have a traumatic effect which often persists through life, leading subsequently to disorder, unless there are counter-balancing factors in family life and in social attitudes which could act as a cushion against such traumatic effects.

Rape is the ultimate violation of the self. It is a humiliating event in a woman’s life which leads to fear for existence and a sense of powerlessness. The victim needs empathy and safety and a sense of re-assurance. In the absence of public sensitivity to these needs, the experience of figuring in a report of the offence may itself become another assault. Forcible rape is unique among crimes, in the manner in which its victims are dealt with by the criminal justice system. Raped women have to undergo certain tribulations. These begin with their treatment by the police and continue through a male dominated criminal justice system. Acquittal of many of facto guilty rapists adds to the sense of injustice.

In effect, the focus of the law upon corroboration, consent and character of the prosecutrix and a standard of proof of guilt going beyond reasonable doubt have resulted in an increasing alienation of the general public from the legal system, who find the law and legal language difficult to understand and who think that the courts are not run so well as one would expect.”

In Madan Gopal Kakkad vs Naval Dubey And another, 1992 SCR (2) 921, Hon’ble Supreme Court held:

“Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.

We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.

In this case a heinous crime has been committed and the accused must suffer for his consequences. A rapist not only violates the victim personal integrity, but leaves indelible marks on the very soul of the helpless female. In this case an unmarried girl had been ravished in the forest (Jungle) by the accused and also left her in the forest (Jungle), who must have undergone a traumatic experience. As a matter of fact the crime is not only against the victim, it is against the whole society as well.

In view of the above discussion, I am of the view that the prosecution has fully established its case beyond reasonable doubt. The impugned judgement and order of conviction and sentence dated 21.12.2015 passed by the Additional Sessions Judge, Fast Track Court, Sonbhadra in ST No. 13 of 2012, which has been sought to be assailed, calls for no interference.

Accordingly, the appeal is dismissed.

The appellant is in jail. He shall remain in jail to serve out the remaining sentence awarded by the Trial Court. However, while deciding the period of sentence the authorities will take into consideration the remission of sentence which the accused-appellant is entitled to in law.

Office is directed to send two certified copies of this judgement to the court concerned for record. Learned Trial Court would send one copy of the judgement to the Superintendent of Jail concerned for conveying the result of the appeal to the accused-appellant and also apprise him of his legal remedy against this judgement.

Compliance report be positively submitted to this court within eight weeks.

Order Date :- 12.01.2018

Ishrat

Shri Avinash Jaiswal, who has been appointed amicus curiae by this Court vide order dated 10.10.2016 to represent the appellant, has argued the appeal at length on 19.12.2017. Office is directed to pay a sum of Rs. 5,000/- (rupees five thousand) only to Shri Avinash Jaiswal, Advocate for his able assistance to the Court.

 

 

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