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Manoj @ Ojha vs State Of U.P. on 17 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved.

Case :- JAIL APPEAL No. – 1154 of 2016

Appellant :- Manoj @ Ojha

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,R.K.Singh[A.C.]

Counsel for Respondent :- G.A.

Hon’ble Mrs. Vijay Lakshmi,J.

This jail appeal has been preferred against the judgment and order dated 11.1.2016, passed by Additional Sessions Judge/F.T.C., Varanasi in S.T. No.502 of 2011, arising out of Case Crime No.132/2011 under Sections 363, 366 and 376 I.P.C., P.S. Chaubeypur, District-Varanasi, whereby the accused-appellant has been convicted and sentenced for the offences referred to above. For his conviction under Section 363 I.P.C., he has been sentenced for 3 years rigorous imprisonment and fine of Rs.5000/-, under Section 366 I.P.C. he has been sentenced for 5 years rigorous imprisonment with fine of Rs.5000/- and for his conviction under Section 376 I.P.C. he has been sentenced with 10 years rigorous imprisonment with fine of Rs. 10,000/- with default stipulations. Out of the total fine to be recovered, half of the amount was directed to be paid to the victim.

Heard Shri R.K.Singh, Advocate, appearing as an Amicus Curiae on behalf of the appellant, learned A.G.A., Shri Rajiv Sharma and Shri Rajiv Mishra on behalf of the State. Perused the record.

The prosecution case in brief is that on 18.4.2011, a written report (Exhibit Ka-1) was submitted before the Senior Superintendent of Police, Varanasi by the complainant, who is the father of the victim mentioning therein that accused Manoj who is the resident of the same village, is an exorcist. He enticed away his 12 years old daughter on 12.4.2011 at about 11 A.M. and took her to some unknown place. When his daughter did not return till late evening, he gave information at the Police Chowki-Chiraigaon. The daughter of the complainant returned on the next date i.e. on 13.4.2011 at about 7 A.M. She was appearing nervous and frightened. When the complainant asked her as to what happened with her, she started weeping. She did not tell anything either to the complaint or to the family members, but kept on weeping. From her appearance, the complainant apprehended that something wrong has happened to her. On 16.4.2011, when her condition became somewhat normal, she told that the accused Manoj had enticed her away with him. The complainant, immediately informed about this incident at the Police Chowki Chiraigaon, but when no action was taken by the police, he submitted a letter addressed to the Deputy Inspector General of Police on 18.4.2011, in the S.S.P. Office and under the orders of the S.S.P., the case was registered against the accused-appellant on 21.4.2011 at Crime No.132/11 under Sections 363 and 366 I.P.C.

Thereafter, the investigation started. However, the case diary which is available on record shows that neither the medical examination of the victim was done on time nor her statement under Section 164 Cr.P.C. was recorded promptly and her statement under Section 164 Cr.P.C. could be recorded on 08.6.2011 i.e. after about two months from the date of occurrence. Her medical examination also could be conducted on 04.6.2011 i.e. after about two months from the date of occurrence. The ossification test too was conducted on 07.6.2011 and according to the radiological report, the victim was found to be about 14 years old. The pathology report shows that no living/dead spermotozoa was found in her vaginal smear.

In her statement recorded under Section 164 Cr.P.C. the victim has stated that on 12.4.2011, she had gone to school. Manoj Ojha, who being neighbor is a prior acquaintance, came to her school and called her on the pretext of some important work. He asked her to come to his house. On his repeated request, she went to his house where she was given some water to drink. After that, Manoj Ojha asked her to come with him to his aunt’s place where some ‘pooja’ was going to be performed. She denied to go to her aunt’s place. Then, Manoj Ojha asked her to accompany him on the pretext that he will drop her to her house, but instead of taking her to her house, he took her to some unknown place where he left her in a small room and went outside. After half an hour one Manoj Pradhan came with Manoj Ojha. Manoj Pradhan slapped her two or three times and stated that as her father was doing pairvi in a Harijan’s case and is not listening to his advise not to do pairvi in the aforesaid case that is why he has brought her to this place and he would kill her. When she started weeping, Manoj Pradhan stated that if her father would not do pairvi in the Harijan’s case, he would give her huge amount of money. She asked Manoj Pradhan to let her go and said that she would ask her father not to do pairvi in the Harijan’s case. Thereafter, Manoj Pradhan, left the place. After his leaving the room, Manoj Ojha committed rape with her and during the whole night he committed rape three or four times. In the morning, he left her at the outskirts of the village from where she came to her home and informed her parents about the incident.

The prosecution, in order to prove its case produced five witnesses in all out of which only two witnesses are of fact and three are of formal character.

A short description of the witnesses is as follows:

P.W.1 is the father of the victim and P.W.2 is the victim herself. P.W.3 is Constable Sanjay Singh who was posted as Constable Moharrair at Police Station Chaubeypur on 21.4.2011, who has prepared the check report and has proved it as Exhibit Ka-2. He is a formal witness. P.W.4 is Dr. Padma Gupta who has medically examined the victim on 04.6.2011 as she was posted as Senior Medical Officer at Zila Mahila Chikitsalaya, Varanasi on that date. She has proved the injury report as Exhibit Ka-3 and the supplementary report as Exhibit Ka-4. During cross-examination, she has stated that if the medical examination of a girl is conducted after one and a half month of the offence, it would be difficult to give any opinion, whether the rape has been committed or not. P.W.5 is S.O. Santosh Kumar, who is the second Investigating Officer in this case. It is noteworthy that the first Investigating Officer, who has conducted the major part of investigation has not been examined by the prosecution. The investigation of this case was transferred to P.W.5 on 04.6.2011. He has filed the charge-sheet in this case on the basis of evidence collected by the first S.O. He has stated that as there was no corroborative evidence in respect of the involvement of Manoj Pradhan in this case, he did not file charge-sheet against him.

After conclusion of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 Cr.P.C. in which he denied from the prosecution allegation and stated that he has been falsely implicated due to enmity of Gram Pradhan election. He has also stated that the family of the victim wanted to take his services without giving any payment and when he refused, he was falsely implicated in this case.

The learned trial court, after a detailed discussion and appreciation of evidence, found the prosecution case worthy of credit and accordingly punished the appellant for the offences under Sections 363,366 and 376 I.P.C. as aforesaid.

The legality and correctness of the impugned judgment has been challenged in this appeal by Shri R.K.Singh, Advocate, appearing as an Amicus Curiae on behalf of the appellant, mainly on the following grounds:

1. There is inordinate delay in lodging of the F.I.R. The occurrence is of 12.4.2011, whereas the F.I.R. has been lodged on 21.4.2011.

2. The F.I.R. has been lodged under Sections 363 and 366 I.P.C. only. However, later on, the prosecution story has been improved by adding Section 376 I.P.C.

3. No sign of rape has been found by the Doctor which is clearly evident from the statement of victim and the medical examination report of the victim, in which there is a clear mention that no definite opinion can be given about rape.

4. The victim has told her father only about she being enticed away by the appellant and has not told anything about the commission of rape. However, in her statement recorded under Section 164 Cr.P.C. which was recorded after about two months from the date of occurrence, she gave a tutored statement adding the story of rape and implicating one Manoj Pradhan also.

5. There are material contradictions between the three statements of the victim recorded under Sections 161 and 164 Cr.P.C. and during trial. In her statement recorded under Section 161 Cr.P.C. she has not stated anything about rape and has not taken the name of Manoj Pradhan. In her statement recorded under Section 164 Cr.P.C., she has stated that the appellant committed rape with her three or four times during night. However, when she was examined as P.W.2 during trial, she has stated that the appellant committed rape with her during night also, which shows that during night, the rape was committed only once.

6. The delay in the medical examination of the victim itself goes to show the doubtfulness of the prosecution case.

7. It appears strange that the victim has not informed her elder sister or her mother about the incident. Her mother and her elder sister living with her could have been the best witnesses in this case, but the prosecution, for the reasons best known to it, has not produced them as a witness during trial which raises doubts in the truthfulness of the prosecution case.

8. It has been stated by the P.W.1 that the victim was treated by some Dr. Maurya after the occurrence but Dr. Maurya who could have been the best witness has not been produced during trial.

9. To a maximum, this case travels up to the offence under Sections 363 and 366 I.P.C. and no offence under Section 376 I.P.C. is made out against the appellant, therefore, he is entitled to be acquitted and the impugned judgment is liable to be set-aside.

Per contra, learned A.G.A., Shri Rajiv Sharma and Shri Rajiv Mishra appearing on behalf of the State have contended that the delay in lodging of the F.I.R. in this case has been properly explained by the prosecution which is clearly evident from the perusal of statement of P.W.1 who has categorically stated that when no action was taken by the police, he gave an application to the D.I.G., Varanasi and it was only under the orders of the S.S.P. Varanasi that his report could be lodged. Learned A.G.A. has further contended that in rape cases somewhat delay is natural because the issue of family prestige is involved in these cases and a person has to think hundred times before going to the police station to lodge the report about the rape.

Learned A.G.A. has further contended that the present case is a glaring example as to how the Investigating Officer, in connivance with the accused-appellant has made a mess of the entire case. Since beginning, the police was reluctant to lodge the F.I.R. under the pressure of Gram Pradhan. The first Investigating Officer recorded the statement of the victim under Section 161 Cr.P.C. with inordinate delay on 30.5.2011 and got recorded her statement under Section 164 Cr.P.C., on 08.6.2011 and if there is no mention of rape in the statement of victim recorded under Section 161 Cr.P.C., the only reason for it is that the Investigating Officer has deliberately not recorded anything about rape in the case diary otherwise there was no question that the victim would not have stated about commission of rape in her statement recorded under Section 161 Cr.P.C. It is further contended that if the victim has not stated about rape to her father, it was only due to the feeling of hesitation and shame which is natural in every adolescent girl. It is further contended that so far as the non examination of the mother and elder sister of the victim is concerned, it appears natural keeping in view the facts and circumstances of the present case as no one likes to drag the ladies of his home in the Court. Moreover, it is the quality and not the quantity of the evidence which is material. It is further contended that the victim, in both of her statements recorded under Section 164 Cr.P.C. and during her trial, has categorically stated about the commission of rape by the accused. She has identified the accused-appellant who was present during trial in the court by stating that: “MULZIM KO MAI PEHCHANTI HOO WOH KATGHARE ME KHADA HAI”. She has also stated that she had prior acquaintance with the accused-appellant. He lives at a distance of only half kilometers from her house and there is no reason to falsely implicate him.

On the aforesaid grounds learned A.G.A. appearing on behalf of the State has prayed that the appeal be dismissed.

Considered the rival submissions of learned counsel for the parties in wake of the evidence available on the lower court’s record.

There is no doubt that the F.I.R. in this case has been lodged with a delay of about nine days, but the delay has been properly explained by the prosecution. The occurrence is of 12.4.2011. The victim who is an adolescent girl has returned to his home in the morning next day i.e. on 13.4.2011. It is also evident that she was appearing nervous, frightened and was weeping and despite being asked repeatedly by her family members, she was unable to tell anything to them. It was only on 16.4.2011, when her condition became somewhat normal, she informed about her kidnapping by the appellant Manoj. Her father immediately gave this information at Police Chowki Chiraigaon, but when no action was taken by the police, he filed a written report addressed to the D.I.G. Varanasi on 18.4.2011, on which the S.S.P. Varanasi passed an order to register the case on the same day and the Station Officer vetted it on 19.4.2011 for compliance. Thereafter, the F.I.R. was lodged on 21.4.2011. Thus, the delay has been properly explained and it has no adverse effect on the prosecution case.

The medical examination report of the victim also supports the prosecution case. According to the radiological report, age of the girl has been found about 14 years and her hymen has been found torned with old tags present. The medical examination of the girl has been conducted on 04.6.2011, i.e. after more than one and a half months from the date of occurrence. In the meantime, the victim must have taken bath and have washed her clothes etc, therefore, there was no possibility of any living or dead spermotozoas being found in her vaginal smear. The case diary is available on the lower court’s record and the Court can peruse the case diary to arrive at a correct conclusion. The case diary shows that investigation of the case started on 21.4.2011, but the Investigating Officer did not record the statement of the victim on that date. Even the victim was not taken for her medical examination by the Investigating Officer within time and the Parcha dated 31.5.2011, shows that only due to non-availability of a lady constable, medical examination of the victim could not be conducted and thus her medical examination could be conducted on 04.6.2011. The statement of the victim under Section 161 Cr.P.C. was recorded on 30.5.2011, at a very belated stage by the Investigating Officer. The aforesaid statement of the victim which is hardly in four or five lines itself shows that the Investigating Officer has not taken the case seriously. On the other hand, he has tried his best to shield the culprits.

The statements of the father of the victim and of the victim finds corroboration with each other. The victim has categorically stated about the commission of rape by the appellant with her. She has been cross-examined at length by the learned defence counsel and during her cross-examination, nothing has been elicited to cast a shadow of doubt on its veracity and truthfulness. The victim is throughout cogent and consistent during her cross-examination and has replied each and every question with natural answers. Some minor discrepancies in her statement appear natural in view of the fact that the occurrence is of 12.4.2011, whereas her statement has been recorded on 05.4.2013 i.e. after two years of the occurrence.

Learned Amicus Curaie has tried to assail the prosecution case on the ground that the victim has gone with the appellant on his motorcycle and her statement also shows that on the way she saw one or two persons passing from there, but she has not raised any alarm.

This Court does not find any substance in the submissions made by the learned Amicus Curaie in view of the fact that the victim is an adolescent/minor girl and the accused-appellant is her neighbor having prior acquaintance with her. The accused-appellant took her on his motorcycle on the pretext that he was taking her to her aunts place to attend a pooja ceremony, therefore, there was no reason for her to raise alarm. Moreover, it does not make any difference because the consent of a minor girl is immaterial. A girl of such a tender age, could have no idea as to what is going to happen with her. She could never have apprehended that the accused-appellant would commit such henious act with her. The victim has explained the circumstances by stating that the appellant came at her school as the school time had been over therefore, there was nobody at the gate of the school. She has stated that as the appellant Manoj had kept the engine of the motorcycle started, she could not jump from it. Under these circumstances, the entire prosecution case cannot be discarded only on the ground that the prosecution has not produced Dr. Maurya in the court.

The learned trial court after considering all these facts and circumstances of the case found the prosecution case worthy of credence and the accused-appellant guilty of all the charges.

There does not appear any good ground to deviate with the view taken by the learned trial court in this appeal which being meritless is liable to be dismissed and it is accordingly dismissed.

The appellant is already in jail. He shall remain in jail and shall serve out the remaining period of sentence.

Lower court’s record along with the copy of this judgment be sent back to the court below for necessary compliance.

Shri R.K.Singh, Advocate, appearing as Amicus Curiae on behalf of the appellant who has very efficiently assisted this court in disposal of this appeal shall be paid Rs.15,000/- as his fee.

Order Date :-17.5.2018

SB

 

 

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