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Mohammad Abrar vs State Of U.P. on 13 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Judgment Reserved on 06.11.2019

Judgment Delivered on 13.12.2019

Case :- CRIMINAL APPEAL No. – 2077 of 2014

Appellant :- Mohammad Abrar

Respondent :- State of U.P.

Counsel for Appellant :- Sushil Kumar Pandey,Pawan Singh Pundir

Counsel for Respondent :- Govt. Advocate,Harish Chandra

Hon’ble Ram Krishna Gautam,J.

1. This Criminal Appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (In short, hereinafter, referred to as ”SectionCr.P.C.’), has been filed by the convict-appellant, Mohammad Abrar, against the judgment of conviction and sentence, awarded therein, by the court of Additional Sessions Judge, court no.6, Muzaffar Nagar, in Sessions Trial No.1566 of 2010, arising out of Case Crime No. 64 of 2010, under Sections 376 and Section506 of Indian Penal Code (hereinafter, in short, referred to as ”SectionIPC’) of Police Station-Mirapur, District-Muzaffar Nagar, with a prayer for setting aside impugned judgment of conviction and sentence, awarded therein. Thereby, awarding acquittal, for offences, charged with.

2. Grounds of challenge, taken in the Memo of Appeal, are that the judgment and order of conviction and sentences, awarded therein, was made without appreciating evidence on record, resulting finding perverse. It was based on surmises and conjectures. Medical evidence was not in support of the prosecution case. There was deliberate delay of more than twenty nine days in lodging first information report because the incident was of 12.1.2010 and the report was of the same was lodged on 31.1.2010. This itself creates doubt on the prosecution version and lead it into peril of suspicion. Judgment of conviction and sentence, awarded therein, was against facts, law and evidence and it was a conviction, not in commensurate to the degree of offence. Hence, a prayer for quashing of the impugned judgment and order, dated 7.5.2014, passed by the court of Additional Sessions Judge, Court No.6, Muzaffar Nagar, in Sessions Trial No.1566 of 2010, arising out of Case Crime No. 64 of 2010, under Sections 376 and Section506 of IPC of Police Station-Mirapur, District-Muzaffar Nagar, and to acquit the appellant from the charges levelled against him, was made.

3. From very perusal of the impugned judgment and record of Trial court, it is apparent that the first information report, Exhibit Ka-1, was presented before the Senior Superintendent of Police, Muzaffar Nagar, on 31.1.2010, whereupon, order of Senior Superintendent of Police, Muzaffar Nagar, was passed for getting prosecutorix medically examined and taking appropriate action in the matter, upon which, Case Crime No. Nil of 2010, under Sections 376 and Section506 of IPC was got registered, at Mahila Thana, Distrct Muzaffar Nagar. Chik FIR, Exhibit Ka-7, was prepared, with a copy of General Diary Entry of registration of this case crime number, Exhibit Ka-8. Since place of this occurrence was within the jurisdiction of Police Station-Mirapur, hence, this case was remitted to that Police Station-Mirapur, where it was entered as Case Crime No.64 of 2010, for offences, punishable, under Sections 376 and Section506 of IPC, by making its entry in General Diary, Exhibit Ka-2 of above Police Station, wherein, investigation was deputed to Sub Inspector, Layak Ram. Prosecutorix was got medically examined on 31.1.2010, at District Hospital, Muzaffar Nagar. Her Medico Legal Report, Exhibit Ka-3, Ossification report regarding her age, Exhibit Ka-4, X-ray, Exhibit Ka-5 were got prepared. Her statement was recorded on 31.10.2010 and spot was got inspected upon pointing of victim-prosecutorix, whereupon, spot map, Exhibit Ka-9, was got prepared. Thenafter, investigation was transferred to Sub Inspector, Mitrapal Sen, who detained accused, Mohammad Abrar on 17.2.2010. His statement was got recorded and after investigation, a conclusion was drawn for commission of offence, as above, punishable, under Section 376 and Section506 of IPC. Hence, chargesheet, Exhibit Ka-6, was submitted by the Investigating Officer before the Chief Judicial Magistrate, Muzaffar Nagar, upon which cognizance was taken by the Chief Judicial Magistrate, Muzaffar Nagar, for offecnes, punishable, under Sections 376 and Section506 of IPC. As offence, punishable, under Section 376 of IPC, was triable before the court of Sessions, hence, this file was committed to the court of Sessions, vide order of the Chief Judicial Magistrate, Muzaffar Nagar, where, this Sessions Trial was entered in the Register of Sessions Cases. Subsequently, this file was allocated to the court of Additional Sessions Judge/Fast Track Court No.1, Muzaffar Nagar, where the Presiding Judge, Shamsher Khan, framed charges in vernacular, English Translation of which, done by the Court, is being reproduced below:

Charge

I, Shamsher Khan, Additional Sessions Judge, Fast Track court no.1, do hereby, charge, Abrar, as follows:

Firstly : That on 12.1.2010 at about (time not known) at village Churiyala, Police Station-Mirapur, at a distance of 28 Kilometeres, towards western side of Police Station-Mirapur, in the District of Muzaffar Nagar, you committed rape with daughter (prosecutorix) of informant, who was disabled, against her consent, thereby, committed offence, punishable, under Section 376 of IPC, within cognizance of this Court.

Secondly : That on above date, time and place, you committed rape against wishes of prosecutorix, daughter of informant and extended threat of dire consequences, in case of opening of lips to anyone, thereby committed, offence, punishable, under Section 506 of IPC, within cognizance of this Court.

So, I, hereby direct you for your trial for above offences.

Sd/-

Dated:7.2.2011

(Shamsher Khan)

Additional Sessions Judge/FTC-1

Muzffar Nagar.

Charges were readover and explained to the accused, who pleaded not guilty and requested for trial.

4. Prosecution examined informant, Noor Mohammad, as PW-1, Prosecutorix-victim, as PW-2, Constable, Subhash Chand as PW-3, Dr. Indra Singh, as PW-4, Dr. Anand Swaroop, as PW-5, Mitrapal Sen, as PW-6, Ravita Gupta, as PW-7 and Layak Ram as PW-8.

5. For having explanation, if any, of accused over incriminating materials and evidence furnished by the prosecution and for getting defence version, statement of accused was recorded, under Section 313 of Cr.P.C., wherein, accusation levelled was denied by submitting that it is a false and malicious accusation for which a false first information report was got registered, whereby, false accusation was got made with preparation of false and fictitious documents. Prosecutorix was major at the time of occurrence and the testimony of PW-1 is false and under greed. Testimony of PW-2, prosecutorix, is under influence of her step father, informant. It was a false and fabricated testimony. Statement of Constable-Subash Chand, PW-3, was false, statement of Dr. Subash Chand was also false and medical report was prepared by him was false and fictitious, testimony of Dr. Anand Swaroop and documents prepared by him were false and fictitious. Investigation by Sub Inspector, Mitrapal Sen, was made for false accusation and a false chargesheet was filed. First information report was got registered by Ravita Gupta and her testimony was false and against facts. Sub Inspector, Layak Ram, had made a false accusation and investigation conducted by him was owing to enmity and with false and malicious contention. He has categorically stated that the informant, step father of the prosecutorix, and his mother, who is sister of accused-appellant, took ornaments of the mother of accused-appellant, and thereafter taken loan, after mortgaging ornaments, for construction of their house, with an assurance to return the ornaments at the earliest. On being asked to return the ornaments, they started quarrelling with them, and as such, the ornaments of the mother of was not returned back, rather, this false case was got registered.

6. In defence, Ikramulla, DW-1, and DW-2, Mohd. Abrar, accused-appellant, himself have been examined.

7. Learned Additional Sessions Judge, after hearing arguments of learned Public Prosecutor as well as learned counsel for the defence, passed impugned judgment of conviction, wherein Mohammad Abrar, accused-appellant, has been held guilty for offence, punishable, under Section 376 and Section506 of IPC. Both sides were heard on quantum of sentence, thereupon, sentence of 10 years’ rigorous imprisonment, with fine of Rs. 20,000/-, in default of deposit of which, two years’ imprisonment, and three years’ imprisonment, for offence, punishable, under Section 506 (2) of SectionIPC, was awarded, with a direction for concurrent running of sentences, so awarded.

8. Against this judgment of conviction and sentence, this Criminal Appeal, with above prayer, has been preferred by the accused-appellant.

9. Learned counsel for the accused-appellant has argued that the prosecutorix is a close relative of accused, Mohammad Abrar. Informant, Noor Mohammad, step father of the prosecutorix, had taken money, by way of taking ornament of mother of the accused for getting it mortgaged, for taking loan from market to construct his house and this construction was made by him, but, even after completion of construction, neither money was returned nor ornaments were returned back. When ornaments were demanded back, this false accusation for offence of rape was lodged, wherein, prosecutorix was a major one. She was disabled girl and was used as a victim by her step father. Testimony of PW-1 and of prosecutorix, PW-2, was in contradiction to each other. Though there were several contradictions on record, but learned Trial Judge failed to appreciate the same and on the basis of surmises and conjectures, passed impugned judgment of conviction, wherein, sentences, awarded were too severe, i.e., not commensurate with the degree of offence. Hence, this Appeal with above prayer.

10. Learned AGA, representing State of U.P., has vehemently opposed arguments of learned counsel for appellant with this contention that the prosecutorix is a close relative of accused-appellant and she, being physically disable, always needs help of some-one. Under belief and trust, accused was given that responsibility for that day of occurrence. Accused-appellant committed this offence of rape with the victim, who was a minor and disabled girl. Offence was very heinous, hence, learned Trial Judge, on the basis of those facts and circumstances, has passed the impugned judgment of conviction and sentences, awarded therein. There is no illegality, irregularity or short-coming in this judgment.

11. Under Section 102 of Evidence Act, initial onus to prove a fact always remains upon plaintiff, i.e., as propounded by the Apex Court in the case of SectionAnil Rishi vs. Gurbuksh Singh, AIR 2006 SC 1971, initial onus to prove a fact is on the person who asserts it. Initial onus is always on the plaintiff to prove his case and if he discharges, then so, onus shifts to defendant. As has been propounded by the Apex Court, in the case of SectionPrem Lata Jain vs. Arihant Kumar Jain, reported in AIR 1973 SC 626, as well as in the case of SectionBabban vs. Shiva Nath, reported in AIR 1986, Allahabad, 185 of this Court, where, both parties have already produced whatever evidence they had, the question of burden of proof ceases to be of any importance, but, while appreciating the question of burden of proof, misplacing the burden of proof on a particular party and recording finding in a particular way will definitely vitiate the judgment. In civil cases, burden of proof on the pleading never shifts, it always remains constant. Initial proving of a case in his favour is cast on plaintiff when he fulfils it, onus shifts over to defendant to adduce rebutting evidence to meet the case made out by the plaintiff, the onus may again shift back to plaintiff, as has been propounded in an age old precedent in the case of Kumbhan Lakshmanna and others vs. Tangirala Venkateswarlu, reported in AIR (36) 1949 PC 278. In the case of SectionSate of Jammu Kashmir vs. Hindustan Forest Company, reported in (2006) 12 SCC 198, Apex Court has propounded that the plaintiff cannot obviously take advantage of the weakness of defendant. The plaintiff’s case must stand or fall upon evidence, adduced by him. In civil cases, burden of proof is not to prove beyond all reasonable doubt, but even preponderance of probabilities may serve as a good basis for decision, as has been propounded by the Apex Court, in the case of SectionM. Krishnan vs. Vijay Singh and another, reported in 2001, Cr. L.J, 4705. Burden to prove and onus to prove are two different things. Burden to prove lies upon a person, who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence as has been propounded by the Apex Court, in the case of SectionA. Raghavamma and another vs. A Chenchamma, AIR 1964 SC 136.

12. In a criminal trial, as has been propounded by the Apex Court, in the case of SectionKalu Ram vs. State of Himanchal Pradesh, reported in AIR 1976 SC 966, the onus is upon prosecution to prove the different ingredients of the offence and unless it discharges that onus, it cannot succeed. As propounded by the Apex Court, in the case of SectionPratap vs. State of U.P., AIR 1976 SC 966, prosecution has to prove charge beyond all reasonable doubt and accused has to prove only establishing or existence of preponderance of probabilities for a case, other than proved by the prosecution. In Appeal, burden is always on the appellant to prove how the judgment, under Appeal, is wrong. He must show where the assessment has gone wrong, as has been propounded by the Apex court in the case of SectionNarbada Prasad vs. Chhagan Lal, reported in AIR 1969 SC 393.

13. Hence, in the present Appeal, the prosecution had proved charges levelled against the appellant before the Trial court/learned Sessions Judge, where, judgment of conviction and, thenafter, order of sentence was passed. Now in this Appeal, appellant has to show as to where and on what points, learned Trial Judge had failed to appreciate facts and law placed on record. This Court of Appeal has to appreciate facts and evidences placed on record, under above perspective of law.

14. PW-1, Noor Mohammad, informant, in his statement, on oath, has stated that Nusarat Jahan, victim, who is his daughter, is disabled. Three and half years back, he was residing with his family at Village, Churiayala, within the area of Police Station-Mirapur. He was a patient of tuberculosis and was under treatment at Delhi. Hence, he went to Delhi on 10.1.2010, alongwith his wife, for getting medicines, leaving behind his disabled daughter, prosecutorix, alone at the home, under guardianship of accused, Abrar, who is her maternal uncle. He came back on 13.1.2010. Her daughter was under threat and agony. She had narrated to her mother that she was subjected to rape by accused-Abrar, who is her maternal uncle, in the night of 12.1.2010, at about 4.00 AM. He went at the house of accused-Abrar, where, his parents were present. Matter was complained, but, they abused him. He went to concerned Police Station, but report was not got lodged. Abrar was not traceable. Report was not being registered inspite of repeated visits to Police Station, then, he went to Superintendent of Police, Muzaffar Nagar on 31.10.2010, where, an application, under his signature was filed and upon the order of Senior Superintendent of Police, Muzaffar Nagar, this case crime number was registered. The same application is on record as paper no. 5Ka, having signature of this witness, in a typed form, and it has been exhibited as Exhibit Ka-1. His daughter, prosecutorix, was medically examined.

15. In his cross-examination, there is no material contradiction or exaggeration or embellishment regarding contention made for commission of offence of rape by accused-Abrar with prosecutorix in the night of 12.1.2010, at about 4.00 AM, while she was left at her home, under the care of accused-Abrar, who is her maternal uncle and the prosecutorix was a minor girl of 17 years of age, whereas, his another daughter was about 18 years of age. Entire cross-examnation was related with facts, which were not material or relevant to this fact said in examination-in-chief, rather, were explanatory, in nature, that he is resident of Ghaziabad and after marriage shifted to this village, Churiyala. His wife was previously married to someone else. Prosecutorix is not daughter from him, rather, he was a step father etc. etc. But, all these facts are not related with above material fact regarding offence, in question. Prosecutorix was said to be disabled by her limbs, but, her mental condition was proper. When he came back from Delhi, prosecutorix was all alone at the home and she was under trauma. When asked for her agony, she narrated that after tying her limbs, she was subjected to rape by her maternal uncle, Abrar. Police personnel visited spot, after report was lodged, in compliance of the order of the Senior Superintendent of Police, Muzaffar Nagar. A suggestive question has been put about taking of some ornaments or quarrel regarding it. This was answered in negative. Report was got lodged on 31.1.2010, whereas, occurrence was of night of 12.1.2010. This was because of the fact that the Police Station, concerned, did not register report. Thenafter, repeated visits was made, failing which, he moved an application before the Senior Superintendent of Police, Muzaffar Nagar. Thereafter, this report was got lodged.

16. No cross-examination is over this fact of registration of this case crime number by proving it as Exhibit Ka-1, whereas, a Division Bench of this Court, in the case of SectionKunwar and others vs. State of U.P., reported in 1993 (3) AWC 1305, has propounded fact not examined and a fact admitted in examination-in-chief, under Section 137 of Evidence Act and held that if some fact has been averred in examination-in-chief of testimony of a witness and same is not being cross-examined, truthfulness of unctroverted part of fact shall be accepted.

17. In the present case, it was specifically said by this witness, in his examination-in-chief that he went at Police Station for getting first information report lodged, but inspite of repeated visits, same was not lodged. Then, on 31.1.2010, he went to Senior Superintendent of Police, Muzaffar Nagar, where an application, which was in typed form and under his signature, was presented and upon an order over this Application by the Senior Superintendent of Police, Muzaffar Nagar, a report was got lodged and this report is Exhibit Ka-1, on record, but no question in cross-examination, on this portion of examination-in-chief, has been put by learned counsel for defence. Hence, this un-cotroverted part justified that there was no delay in lodging of this report and it was lodged by presenting Exhibit Ka-1 over which there was an order of Senior Superintendent of Police for registration of a report.

18. PW-3 is Constable-Clerk, Subshash Chandra, who, in his testimony, has categorically said, in examination-in-chief, that, while being posted at Police Station-Mirapur, District Muzaffar Nagar, as Constable-Clerk, on 31.1.2010, he had received Chik FIR of Case Crime No. Nil/2010, under Sections 376/Section506 of I.P.C., against Mohammad Abrar of Police Station Mahila Thana and this was brought by Sub Inspector of Mahila Thana, Muzaffar Nagar, on the basis of which Case Crime Nmber 64 of 2010, under Sections 376 and Section506 of I.P.C. was got registered at Police Station-Mirapur. This registration of case crime number was entered in General Diary entry at Report No.34 at 17.30 PM, by way of affixing a carbon beneath it and in one and common process, carbon copy prepared as an original one, by way of pasting carbon copy, beneath it, which is paper no. 7Ka on record and General Diary entry of this registration of case crime number is same one. Compared and verified from original one at the time of recording of evidence. This was proved as Exhibit Ka-2.

19. This witness has been cross-examined, wherein, reiteration of examination-in-chief is there. There is no material contradiction, exaggeration or embellishment. Hence, very contention about registration of case crime number, firstly, at Mahila Thana, Muzaffar Nagar, then, at Police Station, Mirapur, Muzaffar Nagar, has been duly corroborated by this witness and under above facts and circumstances, it was instant first information report.

20. PW-4 is Dr. Indra Singh, Senior Consultant, was posted at Muzaffar Nagar District Women Hospital, on 31.1.2010, on Emergency Duty, where, she had examined prosecutorix, brought by Constable Sudeshna and father of the victim, i.e., Noor Mohammad, at about 2.00 PM. Mark of identification was black mole over left cheek and she was weight of about 30 Kilograms and a disabled girl, crippled to stand by herself, having teeth 14/14, no external mark of injury was there, except her disability. Upon internal examination, hymen was old torn and healed, permitting penetration of one figure, uterus was normal, no mark of injury was there, swab was taken for preparation of slide and examination of it in pathology. Her age determination test was referred. Medico legal report, under hand-writing and signature of this witness, on record, is proved and exhibited as Exhibit Ka-3.

21. In her cross-examination, no question about her answer, at above date, time and place or examination made by her of prosecutorix, as above, has been asked, rather, there is reiteration of the statement, made in examination-in-chief.

22. PW-5 is Dr. Anand Swaroop, who, in his examination-in-chief, has said that while, being posted at District Hospital, Muzaffar Nagar, on 6.2.2010, he got X-ray of Prosecutorix, conducted by X-ray Plate No. 659, made and reported by Senior Radiologist Dr. O.P. Bhargava and on the basis of this X-ray report and plate, she was held to be age of 17 years in ossification report. This report was prepared by him and in his hand-writing and signature and exhibited as Exhibit Ka-4. He was fully aware of hand-writing of Radiologist of Dr. O.P. Bhargava, who was posted with him. Hence, he has proved Exhibit Ka-5, under hand-writing and signature of Dr. O.P. Bhargava. X-ray report, on record as Exhibit -1, which was prepared on the basis of, X-ray Pate No.659 of prosecutorix, has been duly proved by this witness.

23. In cross-examination, he has said that the prosecutorix was brought by the Police Constable, Sri Pal. He had not conducted X-ray examination, rather, it was conducted by Dr. Bhargava and on the basis of X-ray prepared by Dr. Bhrgava, ossification report, about age of the prosecutorix, was made by this witness. The basis of determination of age has been elaborately replied by this witness, where there is no inconsistency.

24. PW-6 is Sub Inspector, Mitrapal Sen, who was the Investigating Officer of this Case Crime Number 64/2010, after it having been transferred from erstwhile Investigating Officer, Layak Ram and he has formally proved his investigation and, thereby, submission of chargesheet, Exhibit Ka-6, under his hand-writing and his signature. In cross-examination, there is no contradiction or exaggeration, rather, there is full reiteration of examination-in-chief.

25. PW-7, Constable, Ravita Gupta, is the Constable-Clerk, who has registered this case crime number at Police Station, Mahila Thana, Distrct Muzaffar Nagar. She, in her examination-in-chief, has said that, while, being posted as Constable-Clerk, at Police Station Mahila Thana, District Muzaffar Nagar, on 31.1.2010, she had registered Case Crime No. Nil/2010, under Sections 376/Section506 of IPC, on the basis of a typed application of informant/applicant, Noor Mohammad, presented before the Senior Superintendent of Police, Muzaffar Nagar, and order by him for its registration. Chik Report, Exhibit Ka-7, is on record and the same is under her handwriting and signature. This registration of case crime number was entered in the General Diary Entry of the Police Station, concerned, at 15.30 PM, at report no.80. Carbon copy of the same prepared, under verification process, is on record, which was annexed with original General Diary Entry, brought before the court at the time of recording of evidence, which is exhibited as Exhibit Ka-8.

26. In cross-examination, she has said that this registration was made in compliance with the order of Senior Superintendent of Police and after registering this case crime number, prosecutorix was sent for medical examination by Sub Inspector, Omwati of Mahila Thana. This report was received at above Police Station. Since this case was of Police Station Mirapur, hence, this entire case was transferred to concerned Police Station, where, it was got registered and investigated.

27. There is no material contradiction of testimony of this witness. It is in corroboration of testimony of PW-1 on the point of registration of case crime number.

28. PW-8 is the erstwhile Investigating Officer, who was the first Investigating Officer, who has stated that, while, being posted as Sub Inspector, at Police Station Mirapur, District-Muzaffar Nagar, he was deputed with investigation of Case Crime No. 64/2010, under Sections 376/Section504 of IPC, State vs. Mohammad Abrar, on 31.10.2010, and on the basis of Chik FIR, medical reports, G.D. entry, statement of Constable, Subhash Chandra, he recorded statement of informant, Noor Mohammad and the prosecutorix, her mother, Ashida, in case diary. Thenafter, visited spot and prepared spot map, under the pointing of the prosecutorix, same is under hand-writing and signature of this witness and is Paper no. 8K, which has been proved as Exhibit Ka-9. Thenafter, raid was made on 3.2.1010 for arrest of accused, but arrest could not be made. In between, he was transferred from above Police Station.

29. In cross-examination, there is no material contradiction in his statement, except of trivial one, which has been asked in hair spiting cross-examination, but learned Additional Sessions Judge has rightly appreciated that those minor contradictions bound to occur in such type of hair splitting cross-examination. There was no material contradiction, rather, they make witness as a natural witness.

30. Regarding charge for offence of rape, punishable under Section 376 I.P.C., Section 375 of I.P.C. provides: “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:–

(Firstly) — Against her will.

(Secondly) –Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) –With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly)– With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.–Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) –Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

31. Section 376 I.P.C. provides for punishment of rape that:-

(1) “Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.”

32. In the present case, the crucial witness is prosecutorix and she has been examined as PW-2, who, in her examination-in-chief, has categorically said that she was of age of 17 years and a disabled since childhood because of being victim of Polio. Her both, upper and lower limbs were non-ambulatory, hence, she could not walk or even stand, but, she was being taken care of by her parents. She is illiterate. Three and half years to four years back, she was residing with her parents at Village Churiyala, in her house. Her father was suffering with Tuberculosis. He was under treatment at Delhi. He had been at Delhi with her mother. She was left, with a request to her maternal grand mother for her caring during absence of her parents. Her grand maternal mother deputed her maternal uncle, Abrar, for caring of her, during this period of absence of her parents. Abrar assured her father and mother that he will look after prosecutorix till they return back. He was residing at the house of prosecutorix. Those days were of cold. Prosecutorix was all alone at her home and was sleeping at her cot. Her maternal uncle was sleeping over another cot. None else was there. In the night at about 4 AM, while she was asleep, her maternal uncle, Abrar, tied her hands and feet by Scarf (Dupatta), as she was victim of paralysis, she could not perceive it, but when she felt pain in her urinary region, she had awakened. She found her hands and feet are tied and her maternal uncle, Abrar, committed rape with her. She was unable to protest because of her disability and knife put by her maternal uncle, Abrar, over her neck. Her mouth was tied by cloth. Abrar did penetration by his urinal part in her vaginal part. She felt pain, but she could not cry because of mouth being shut by Abrar. She was subjected to rape with a threat to face dire consequences, in case of opening of lips to her parents and her parents will also be killed. There was prayer of Fazir (that is a prayer at 4.00 AM, offered by Muslims to the Almight, Allah). Abrar came out of house, then, prosecutorix robed herself. On the next day, neither, Abrar, attended her nor gave meal to her. She was helpless. On the next day, her parents came back, then, she could have meal and she complained to her mother about this occurrence and trauma. Her father went for getting first information registered at concerned Police Station, but inspite of repeated attempts, report could not be lodged. News was published in the news paper, thenafter, report was got lodged and she was medically examined. In examination-in-chief, each of ingredients, for constituting offences, punishable, under Section 376 of IPC, mentioned as above, has been made out. Offence, punishable, under Section 506 of IPC, has also been constituted by this testimony.

33. The veracity of testimony made by this witness was tested in her cross-examination, wherein, she has reiterated her statement. She has been put in hair splitting cross-examination on many dates by learned counsel for defence and a number of questions, including humiliating questions, too, about marriage of her mother with the informant, she, being step daughter of informant etc. etc. have been asked, but she has categorically replied in examination-in-cross that she was 17 years’ of age and on this point there was no variation that she was minor as was held in her medical age determination. Accused, Abrar, is her real maternal uncle. He was deputed for her care, during the period of absence of her parents. He was at her house on that night on which date she was subjected to rape by him. Abrar made penetration by his genital part in her vagina. She was disabled from her childhood, having non-ambulatory upper and lower limbs. She always needed help of some-one for her routine works, which was being assisted by her parents. Her father, too, was under ailment, living in miserable condition. They were having no means of their livelihood and doing work of labourer for getting their two times meals. Suggestive questions were put to her that accused had given jewellery of his wife for keeping as bond for fetching money for construction of house and this money was not returned back because of which this false implication was made. This question may be a relevant question to be put to informant, but this may never be a relevant question to be put before this witness because she herself said to be a minor and may not be aware of those facts, which were said to have been entered into in between accused and the informant, but no such question has been asked cogently to informant, PW-1, and this witness has replied her ignorance about those facts. She could not tell exact date of occurrence, but, she has categorically said that those were days of cold and time was of Fazir Namaz, i.e., very cogent reply. She was subjected to rape by the convict-appellant, under threat of force. Regarding this material allegation, there is no contradiction, exaggeration or embellishment.

34. Delhi High Court by its Division Bench’s judgment in the case of Rajinder alias Lala and etc. vs. Stae, reported in 2010 CRL.L.J. 15, has held that it is general handicap attached to all eye witnesses if they fail to speak with precision, their evidence is assailed as vague and evasive, but, on the contrary, if they speak of all the events very well and correctly, their evidence become vulnerable to be attacked as tutored. Both the approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standard. By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video taps is replayed on the mental screen. Apex Court, in the case of SectionRajendra Prasad vs. Narcotic Cell, reported in AIR 1999 SC 2292, has propounded that after all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

35. In the present case, prosecutorix was subjected to rape by her real maternal uncle. She was a minor and crippled girl, suffering with trauma of being non-ambulatory, having upper and lower limbs polio affected. Her parents were poor persons and her father, who was looking after her, himself was suffering with, tuberculosis and was at Delhi for getting his medicine and has to arrange someone for taking care of his disabled minor girl. Thus, he requested her maternal grand mother, whom he trusted much more, than any one else, being mother of his wife, to look after this poor and physically disabled gird, who deputed her son, being real maternal uncle of the prosecutorix, for taking care of the prosecutorix, during the absences of his sister and brother-in-law, i.e., parents of the prosecutorix. He assured them for taking all care of the prosecutorix, but in that very fateful night, he, by breaking all relations and trust, reposed upon him by his sister and his brother-in-law, parents of the prosecutorix, as well as, his mother, committed this heinous offence of rape with his real maternal niece (his real sister’s daughter), who is also a poor, minor and disabled victim, not able to move herself. She, herself, was a crippled girl and was subjected to rape, resulting her in trauma and mental agony. She was also not offered meal on the next day. When her parents came back, they found this poor girl in a miserable condition and came to know about this heinous offence, committed by the accused. They made a complaint to grand maternal mother, but, she became abusive. Accused, Abrar, was missing. Then, they went at Police Station for getting case lodged, but inspite of repeated attempts and due to apathy shown by the Police, report could not be lodged. Ultimately, he was left with no option, except to approach Senior Superintendent of Police, Muzaffar Nagar. By the grace of God, Senior Superintendent of Police, directed for lodging of the report and under his direction, this case crime number was got registered, firstly, at Mahila Thana, i.e., not at the Police Station, concerned, but, lateron, case was transferred to concerned Police Station, where, investigation was conducted by the concerned Police Station. It shows apathy of that Station House Officer, who was posted there at that time. Neither cloths of the victim were taken nor same were got examined in laboratory nor DNA test was got conducted. If these steps would have been taken by the Station House Officer, concerned, in time, it would have been much more helpful, in judicial proceeding and its decision making, but even then the prosecutorix, in her testimony, and other formal witnesses, discussed above, proved charges levelled against convict-appellant beyond reasonable doubt.

36. Learned Sessions Judge, by his analytic appraisal, analysed entire case, in the correct perspective of law and precedent, and concluded with conviction of convict-appellant for offence of rape, which was well in accordance with evidence on record.

37. Statement of Ikramulla, DW-1 and Abrar, DW-2, was of this fact that ornaments were given to Noor Mohammad and those ornaments were pledged for taking money to construct house. Those ornaments were to be returned back, hence, this false case with false accusation.

38. Even if these facts were being admitted and proved, on record, then, also in view of statement of prosecutorix regarding rape committed with her, testimony of DW-1 and DW-2, may not going to give any reason, which may be of any probability for raising any benefit of doubt against the proved case of prosecution.

ORDER

The sentences awarded by the learned Sessions Judge, as above, are the sentence, given by the Legislature for above offences and this offence of rape, that too, with a minor, physically disabled girl, by real maternal uncle, comes in a category, where, a deterrent punishment is needed, which the learned Sessions Judge has rightly and cogently awarded in the impugned judgment.

There is no illegality or disproportion in the quantum of sentence.

Accordingly, on the point of sentence, too, Criminal Appeal merits its dismisal, and, thus, it stands dismissed as such.

39. Let a copy of this Judgment, alongwith the Trial Court’s record, be sent to the Trial court concerned, by the office within two weeks.

13.12.2019

bgs/-

 

 

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