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Munnu Sonkar vs State Of U.P. on 8 June, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R

Reserved

Court No. – 52

Case :- CRIMINAL APPEAL No. – 110 of 2015

Appellant :- Munnu Sonkar

Respondent :- State Of U.P.

Counsel for Appellant :- Rajiv Chowdhury,Kamal Krishna

Counsel for Respondent :- Govt.Advocate,Ramesh Chandra Maurya,Suresh Kumar Maurya

Hon’ble Ravindra Nath Kakkar,J.

This criminal appeal has been preferred against the judgement and order dated 29.11.2014 passed by Additional Session Judge, Court No. 1, Varanasi in Sessions Trial No. 22 of 2011 (State Vs. Munnu Sonkar) convicting and sentencing the accused-appellant for the offence under Section 376 I.P.C. to 10 years rigorous imprisonment with fine of Rs. 20,000/- and in the event of default of payment of fine he has to undergo additional rigorous imprisonment of two months. Further, he has been convicted for the offence under Section 342 I.P.C. and sentenced to one year rigorous imprisonment. It was further directed that from the total deposit of fine, Rs. 15,000/- shall be paid to the victim. The sentences have been directed to run concurrently.

I have heard learned counsel for the appellant as well as Sri Arun Kumar Soni, Advocate holding brief of Sri Ramesh Chandra Maurya, learned counsel for the complainant and learned A.G.A. for the State.

Prosecution story in brief is that complainant Surender Maurya lodged First Information Report on 10.10.2010 at about 21.30 p.m. stating therein that his daughter aged about 13 years was called by the accused-appellant on the same day at about 8.00 p.m. She was taken in a Baithaka of Munakka Pradhan. The son of the complainant namely Basant Maurya was kept and closed in a room and daughter of the complainant was kept and closed in another adjacent room. Accused-appellant unclothed his daughter and committed rape. His daughter raised alarm and on hearing the voice of his daughter the wife of complainant namely Sudama alongwith nearby villagers reached at the spot. Thereafter, accused-appellant on seeing them fled away from the spot.

On the basis of written report Ex. KA1, case was registered against the accused-appellant as Case Crime No. 234 of 2010, under Section 376, 342 I.P.C.

Investigation of this case was conducted by S.I. Ramkinkar Pandey. Accused-appellant was arrested. Statements of the accused-appellant and the witnesses were recorded. Prosecutrix was medically examined. He has prepared the site plan of the place of occurrence. He has filed charge sheet under Section 376, 342 I.P.C. against the accused-appellant before the trial court which is Ex. KA5. The case was committed to Sessions Court. Charge under Sections 376, 342 I.P.C. was framed against the accused-appellant which he denied and claimed trial.

In support of prosecution case, PW1 Surendra Maurya (complainant), PW2 Prosecutrix, PW3 Dr. Mradula Malik, PW4 S.I. Chhavinath Singh Yadav, PW5 S.I. Ramkinkar Pandey and PW6 H.C. Rajesh Kumar were examined.

In support of prosecution case following documentary evidence were produced before the trial court: –

Written Report Ex. KA1, Medical Report Ex. KA3, Site Plan Ex. KA6, Supplementary Report Ex. KA4, Age Certificate of the Victim , Copy of the chick, G.D. report, F.I.R. Ex. KA7 and Charge Sheet Ex. KA5.

After close of prosecution evidence statement of the accused-appellant under Section 313 Cr.P.C. was recorded wherein accused-appellant stated that he has been falsely implicated in this case due to election rivalry and under pressure of police.

After hearing both the parties the court below has convicted and sentenced the accused-appellant as stated above.

I have perused the impugned judgement of conviction and order of sentence and material available on record.

From a bare perusal of the statement of the prosecutrix PW2 it is established that on the date of incident at about 08:00 P.M. accused-appellant Munnu Sonkar called her to take medicine as victim was suffering from white spot. When she alongwith his younger brother accompanied by the accused reached Baithaka, her brother was kept and closed in a adjacent room where the television was on. At that point of time volume of the television was raised by the accused-appellant. Accused-appellant was armed with knife and under threat he took the prosecutrix in other room adjacent to the first room. Accused-appellant unclothed her by giving threat and tied her hands and legs. Thereafter, accused-appellant raped her. It was further stated that when prosecutrix and her brother cried, hearing the noise, her parents came to the place of occurrence and on seeing them accused-appellant ran away from the spot. Thereafter, F.I.R. of the said incident was lodged and she was medically examined. Her statement under Section 164 Cr.P.C. was also recorded before the Magistrate concerned.

Father of the prosecutrix Surendra Maurya (complainant) was also examined as PW1 and he also supported the prosecution case. Prosecutrix and her father were cross-examined at length but nothing adverse elicited which can discredit or disbelieve their testimony.

Before proceeding to examine the legality and correctness of impugned judgement, I would like to refer established legal propositions as follows:-

In State of Maharashtra Vs. Chandraprakash Kewalchand Jain, A.I.R. 1990 S.C. 658 – The Hon’ble Supreme Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another persons lust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. Further the court observed as under:

It is necessary at the outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of prosecutrix, in sex offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the court basis a conviction on her testimony ? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix ? Let us see if the Evidence Act provides the clue under the said statute ‘Evidence’ means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry under Section 59 all the facts except the contents of documents may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) of Section 114 which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus, under Section 133 which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114 illustration (b), Courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114 illustration (b). Further observed that 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 an conscious of that 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 courts 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) of 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.

There are catena of cases observed by the Hon’ble Supreme Court and the various High Courts shows that law which emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credit and reliable, requires no corroboration the Court may convict the accused on the sole testimony of the prosecutrix.

It is relevant to mention that F.I.R. of the aforesaid incident was lodged promptly on the same day naming the accused and the witnesses. The prompt F.I.R. goes to show the genuineness of the prosecution version. So far as age of the prosecutrix is concerned the trial court has arrived at the conclusion that prosecutrix was about 16 years old. In such situation the willingness and consent of minor for the commission of offence of rape stands immaterial.

The conviction recorded by the trial court is based upon the evidence led by the prosecution which has been found to be credible and believable as there is neither any material contradictions nor any discrepancy in the statement of the prosecutrix as well as the fact witnesses. As per the established law conviction can sustain on the sole testimony of the prosecutrix. Medical evidence in the case of sexual assault needs not to be mandatorily required to corroborate the prosecution story.

In light of the aforesaid established legal propositions and the oral as well as documentary evidence available on record, I find that the Court below has rightly recorded the conviction against the accused-appellant after appreciating the evidence and the material available on record and giving opportunity of hearing to both the sides. The findings of conviction recorded by the trial court are reasoned and based on established legal proposition and materials available on record. So I find no justification to interfere with the finding of conviction recorded by the trial court.

Learned counsel for the accused-appellant submits that he does not want to press the appeal on merit and he only press the appeal on quantum of sentence and submitted that accused-appellant is an old man and at the time of recording the statement under Section 313 Cr.P.C. he was about 65 years and due to old age he frequently remains ill. It is next contended that accused-appellant has no previous criminal antecedents. Further contended that accused-appellant is a member of poor family and there is no-one in his family to look after and due to this his family has been suffering from economic hardship and his properties also being misused. It is further contended that more than seven years of imprisonment has already been served by the appellant. So prayer for modification and reduction of the quantum of sentence has been made.

Learned A.G.A. as well as learned counsel for the complainant have no objection to the prayer made.

I have considered the submissions made by the learned counsel for the appellant that appellant is languishing in jail since 23.10.2010 i.e. more than seven years and this fact is also admitted by the prosecution. Minimum punishment is 7 years with fine for the offence under Section 376 (1) I.P.C. and the accused-appellant has already served more than 7 years sentence and he is above 65 years. So I am of the view that appeal deserves to be partly allowed on the point of sentence only. Accordingly, the appeal is partly allowed on the quantum of sentence. The findings of conviction recorded by the trial court against the accused-appellant for the offence under Section 376 and 342 I.P.C. is hereby confirmed and maintained. Since the appellant has already served more than seven years sentence, the sentence awarded to the appellant by the impugned judgement is reduced to sentence already undergone by him i.e. more than 7 years subject to condition that appellant shall pay Rs. 20,000/- as compensation to the victim, in default he has to undergo further six months rigorous imprisonment and to this extent the impugned judgement is modified. It is made clear that no interference is being made with the rest of the sentence awarded by the trial court and all the sentence awarded shall run concurrently. Accused-appellant shall be entitled to get the benefit of Section 428 Cr.P.C.

Let a certified copy of the judgement and order be sent to the Chief Judicial Magistrate concerned for compliance report. The lower court records be returned for compliance.

Order Date :- 8.6.2018

AKT

 

 

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