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Nathi Ram vs State Of U.P. on 9 August, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 20 Reserved

Case :- CRIMINAL APPEAL No. – 4187 of 2017

Appellant :- Nathi Ram

Respondent :- State Of U.P.

Counsel for Appellant :- Vikas Sharma,Garun Pal Singh

Counsel for Respondent :- G.A.

*******

Hon’ble Ravindra Nath Kakkar,J.

This criminal appeal has been preferred against the judgment and order dated 31.7.2017 passed by Additional Session Judge/Fast Track Court -II, Saharanpur in Session Trial No.756 of 2014 (State Vs. Nathi Ram) arising out of Case Crime No.144 of 2014, Police Station Biharigarh, District Saharanpur, whereby the appellant was convicted and sentenced to 10 years R.I. with a fine of Rs.40,000/- and in default of payment of fine one year additional imprisonment under Section 376 I.P.C. He was further sentenced to 2 years simple imprisonment with a fine of Rs.10,000/- and in default of payment of fine three months additional imprisonment under Section 452 I.P.C. All the sentences were ordered to run concurrently. Further a sum of Rs.25,000/- from the fine was directed to be given to the victim as compensation.

Prosecution story, in brief, is that physically challenged daughter of the complainant, aged about 21 years, used to reside at the residence. On 20.4.2014 when complainant and his wife Munesh went to the field for work; at about 6.00 p.m. (evening) accused, who lives in the neighbourhood, entered into the complainant’s house and forcibly took the physically handicapped and dumb girl on his lap and entered into the room and locked all the doors of the house and thereafter committed rape upon her. It is also alleged that at about 6.30 p.m. (evening) Mulayam Singh Saini, son of the complainant, after closing his shop returned to his house and found that house was closed by all sides. Anyhow he entered into the house after jumping from the wall and saw the accused in a compromising position with his sister. The accused had unclothed her sister. On seeing the brother of the victim, accused ran away from the house. He was chased but could not catch hold of him. Thereafter son of the complainant narrated the incident to his father. A written report has been scribed by one Charan Singh Saini which was submitted to the police station, but the police did not take any action. Thereafter an application under Section 156(3) Cr.P.C. was moved and FIR was lodged on 17.07.2014 at about 11.15 a.m. as Case Crime No.144 of 2014, under Sections 452, 376 I.P.C. against accused Nathi Ram.

Investigation was conducted; site plan was prepared; after completion of the investigation charge sheet was filed against accused Nathi Ram under Sections 452, 376 I.P.C. Charges were framed on 21.10.2015 which were denied by the accused and claimed trial.

In support of the prosecution case, complainant Yogendra Singh Saini as P.W.1, Mulayam Singh as P.W.2, victim/prosecutrix as P.W.3, Dr. Gurmit Kaur as P.W.4, Constable Usha Malik as P.W.5 and S.I. Pawan Singh as P.W.6 were examined.

As a documentary evidence application under Section 156(3) Cr.P.C. Ex.Ka-1, affidavit of complainant Ex.Ka-2, statement under Section 164 Cr.P.C. Ex.Ka-3, medical report Ex.Ka-4, supplementary report Ex.Ka-5, pathology report Ex.Ka-6, first information report Ex.Ka-7, Carbon copy of G.D. Ex.Ka-8, site plan Ex.Ka-9 and charge sheet Ex.Ka-10 were filed.

After close of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. The accused claimed false implication due to enmity. In support of defence D.W.1 Surendra and Constable Vijay Singh as D.W.2 were examined and following documentary evidence were produced; I.D. proof of Nathi Ram, ration card of Manoj (son of the accused), photo copy of the family register and the sale deed executed in favour of Gyanwati by accused Nathi Ram and the sale deed of the shop in the name of accused and photocopy of the voter list 2017.

The crux of the matter to be decided in this appeal is whether on 20.4.2014 at about 6.00 p.m. (evening) accused appellant committed rape upon physically handicapped and dumb victim/prosecutrix or not.

Learned counsel for the appellant contended that the impugned judgment of conviction is illegal and perverse and based on surmises and conjectures. The oral testimony of witnesses does not support the prosecution story. Conviction is against the weight of evidence on record. The alleged incident is said to be of 20.04.2014; FIR was lodged, on an application moved under Section 156 (3) Cr.P.C. on 02.05.2014 after 11 days of the alleged incident, on 17.07.2014. So there is delay in lodging the FIR. It is next contended that victim is a dumb girl and could not able to narrate the incident. Her statement was recorded on translation by Dr. Vishnu Kumar expert speech therapy cardiologist before the trial court. So the testimony of victim does not inspire confidence as being not a competent witness. It is next contended that as per prosecution version P.W.2 Mulayam Singh, brother of the victim, reached on the spot at the time of incident and in his presence accused appellant, who was 65 years old at the time of incident, fled away from the spot in front of P.W.-2 but he could not be caught by P.W.2 – Mulayam Singh (brother of the prosecutrix – victim), alleged to be an eye witness, belies his presence. It is next contended that the accused appellant was not arrested by the police but he had surrendered before the court below which shows the bonafide conduct and innocence of appellant. It is next argued that the accused appellant is falsely implicated in this case because brother of the complainant wanted to purchase the land of the appellant but appellant sold his land to some other person, due to this animosity with the assistance of infirm and helpless daughter a false and concocted report has been lodged against him. It is next contended that appellant was 65 years old at the time of incident, hence was not competent to commit the alleged incident of rape. It is lastly argued that on an application moved under Section 156(3) Cr.P.C. inquiry report was submitted by the concerned police station in which alleged incident was reported to be false and that has been wrongly appreciated in the impugned judgment. It is further contended that in cross-examination of the victim she herself has stated that no bad act was committed against her by the accused appellant which has been ignored by the learned trial Judge and arrived at an erroneous conclusion, which is against the weight of evidence.

Per contra, Shri Rajiv Mishra, learned A.G.A. argued that the impugned judgment is just, legal and proper and does not suffer from any illegality and has been passed strictly in accordance with law. The facts, circumstances and evidence adduced by the prosecution were duly considered and appreciated, on the basis of which learned trial court has rightly concluded that appellant accused has committed offence of rape by entering into the house of the helpless, physically challenged, handicapped and dumb girl. Learned A.G.A. argued that proper and plausible explanation has also been given by the fact witnesses for the delay in lodging the FIR. It is next argued that

on the sole testimony of the prosecutrix/victim conviction could be sustainable in the eye of law. There is no law which requires its corroboration with material particulars especially the medical evidence. The fact of the case is that a helpless, physically challenged, handicapped girl aged about 21 years who is also dumb, has been forcibly raped by the accused appellant by entering into the house of the girl. It is a serious offence against the society. The submission of the learned counsel for the accused appellant that punishment is harsh and severe is not sustainable. Accordingly, this appeal is devoid of any merit and deserves to be dismissed.

Before proceeding to examine the legality and correctness of the impugned judgment of conclusion and order of sentence in the light of the submissions advanced by both the parties, it would be relevant to mention certain legal propositions on the subject.

In the case of State of U.P. Vs. M.K. Antony, AIR 1985 SC 48, Hon’ble Apex Court held that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the : root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer.

In the case of State of H.P. Vs. Raghuvir Singh 1993 (2) SCC Page 522, Hon’ble Apex Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.

In the case of State of Punjab Vs. Gurmeet Singh AIR 1996 SC 1393, Hon’ble Apex Court that in cases involving sexual harassment, molestation etc. The court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurance of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplish.

Now so far as the challenge to the competency of oral evidence of the prosecutrix being a dumb witness is concerned, I would like to refer Section 119 of the Indian Evidence Act, 1872, which is as follows :-

A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence.

In Prakash Chand Vs. State of H.P. 1999 (1) Crimes 675 (H.P.), it was held that “where the witness is dumb, recording of his evidence should be of his signs and not interpretation of sign.”

In view of the above, perusal of the record shows that P.W.3 prosecutrix in her statement, which was recorded with the aid and assistance of an expert translator Dr. Vishnu Kumar which is required under Section 119 of the Indian Evidence Act as prosecutrix victim is physically handicapped and dumb girl aged about 21 years, with sign language specifically and categorically stated before the trial court pointing towards to the accused appellant present in the court that she was unclothed by the accused appellant; got laid on the cot; pressed her mouth and committed rape on her (by sign language).

In view of her duly recorded statement before the trial court and settled legal position, I hold that the testimony of prosecutrix is that of a competent witness. The contention of learned counsel of appellant in this regard has no merit at all.

The next point argued before me is with regard to the delay in lodging the FIR. From a perusal of record it is established from the evidence that the incident is said to be of 20.04.2014 and the chik FIR Ex.Ka-7 shows that FIR was registered at the police station on 17.07.2014 at 11.15 a.m., but it transpires from the record that the FIR was got registered by the order of Magistrate on an application moved under Section 156(3) Cr.P.C. Further it has come in the evidence that the copy of the written report which was given to the police station was given to the complainant and the victim prosecutrix was medically examined on 21.04.2014 at City Hospital, Saharanpur which is Ex.Ka-4. Defence witness no.2 Constable Vijay Singh has admitted this fact that there was a preliminary inquiry which was registered in G.D. No.19/20 which goes to establish that the incident is of 20.04.2014, written report was handed over to the police station, medical examination of prosecutrix was conducted on 21.04.2014 but due to inaction on the part of the police an application under Section 156(3) Cr.P.C. had to be moved on 02.05.2014 and thereafter on 17.07.2014 FIR was got registered in the police station. Further on perusal of statement given by P.W.1 complainant, father of the victim, and P.W.2 Mulayam Singh, brother of the victim, it is established that without any delay written report was given to the police station, but FIR was not registered and it is only on the order of the Magistrate passed on application moved under Section 156(3) Cr.P.C. the FIR was got registered in the police station. So I find that there is no delay in lodging the FIR in this case and if so it was properly and cogently established and explained by adducing evidence before the trial court. Therefore, I am of the view that there is no substance in the argument raised by the learned counsel for the appellant so far as delay in lodging of FIR is concerned.

On appreciation of oral evidence of fact witnesses I found that P.W.1 Yogendra Singh Saini is the father of the victim who is complainant of the case and P.W.2 Mulayam Singh – brother of the victim is an eye witness. Testimonies of the fact witnesses P.W.1 and P.W.2 found to be believable and acceptable as it shows that P.W.2 brother of the victim has categorically stated that on the date of incident at about 6.30 p.m. when he returned to his house from the shop he saw that his house was closed from inside. Thereafter he jumped from the wall and entered to the courtyard of the house where he found that his physically challenged and dumb sister was in a compromising position with the accused appellant and the accused appellant was forcibly committed rape on her. At this point of time accused appellant Nathi Ram run away from the spot. Although, he was chased but could not be caught. Thereafter this witness went to the field where his parents were doing agricultural work there and narrated the incident. Thereafter written report was handed over to the police station. Likewise, P.W.1 – complainant, father of the victim, during examination before the trial court has stated that at the time of incident his physically challenged dumb daughter was alone in the house as he and his wife were in their agricultural field. Investigating Officer P.W.6 Pawan Singh during investigation had spotted the place of occurrence which is inside the house of the complainant and proved the site plan Ex.Ka-9. It is important to mention that prosecutrix victim was examined as P.W.3 and had supported the incident as alleged in the FIR. It is established legal proposition that in cases of sexual assault, the sole testimony of prosecutrix is sufficient to convict the accused. If her testimony found to be truthful, trustworthy and believable, as per the law cited above, corroboration by any independent witness or corroboration by the medical evidence is not essentially required. It is also trite that only attending and mitigating circumstances at the most required to lend assurance for the commission of the crime on the person of the victim. Perusal of the oral statement of P.W.1 – father of the victim, P.W.2 – brother of the victim, sufficiently lend assurance to support the sole testimony of the prosecutrix victim who unfortunately happens to be physically handicapped and dumb girl, who was not in a position to resist or make cry at the time of incident. P.W.1, P.W.2 and P.W.3 were cross-examined at length by defence but nothing has been elicited by the learned counsel for the accused appellant which goes to discredit their testimony.

So far as the argument of the learned counsel for the accused appellant that P.W.2 – Mulayam Singh – brother of the victim could not be said to be an eye witness because of the fact that accused appellant was an old person at the time of incident and it is alleged that he was chased by brother of the victim who was healthy and young at the time of this incident but could not catch hold of accused which is quite unnatural and improbable that goes to show that P.W.2 was not an eye witness. I am not inclined to accept this argument because the prosecutrix herself with the assistance of an expert Dr. Vishnu Kumar has specifically and categorically pointed out towards the accused appellant who was present in the court and through sign language stated that she was unclothed by the accused appellant; got laid down on cot and thereafter committed rape on her. The accused appellant who is her neighbour and resides in front of the house of the victim taking advantage of her loneliness and disability committed this offence. This peculiar fact and circumstance itself sufficient to prove the guilt of the accused and further in this case initially FIR was not lodged by the police. It is only after the order of the Magistrate on application under Section 156(3) Cr.P.C. FIR was registered. Prosecutrix victim was medically examined on 21.04.2014 and the incident is said to be of 20.04.2014 at about 6.30 p.m. (evening). Under these facts and circumstances I am of the considered view that the testimony of the prosecutrix found to be trustworthy, believable, cogent, credible and clinching evidence against the appellant. So I have no doubt in my mind whatsoever to discredit her evidence.

Learned counsel for the appellant vehemently argued that the age of the appellant was more than 80 years and he was quite old person at the time of alleged incident so he was not competent to commit the offence of rape. This argument has no substance because in the statement of the accused recorded under Section 313 Cr.P.C. his age was mentioned as 64 years and further no medical certificate has been tendered during trial. Therefore, I am of the view that this argument is nothing but only probability based on surmises and conjectures which is devoid of any merit.

Next argument that appellant was falsely implicated in this case due to enmity and the alleged enmity as stated to be that the brother of the complainant wanted to purchase the land of the accused which later on was sold to another lady and aggrieved by this accused appellant has been falsely implicated in this case. I am not inclined to accept this argument because the brother of the complainant wanted to purchase the land but he was neither examined nor was summoned by the defence and it is quite unnatural and improbable that for such reasons a person will falsely implicate the accused appellant against the dignity and respect of physically handicapped unmarried dumb daughter and no one of ordinary prudence will accept it.

So far as the plea of alibi taken by the accused is concerned, it is relevant to mention that the documents filed as per list 32 Kha in support of it reveal that voter list was prepared on 15.04.2015 after the date of incident; ration card of the son of the accused appellant was also prepared on 11.01.2015 which is after the date of incident and the family register does not have any date. So all these documents ex facie found to be fabricated in order to avoid the culpability of the accused from the commission of crime. It is established legal proposition that the plea of alibi has to be decided on the principle of preponderance of probabilities but it does not find support either from the oral or from the documentary evidence. So I am not inclined to accept the plea of alibi as raised by the learned counsel for the appellant in this case.

So far as the argument of the leaned counsel that medical evidence does not support the commission of rape, in this regard it is relevant to mention that it is settled law as laid down in the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, AIR 1990 SC Page 658, wherein Hon’ble Apex 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 person’s lust and, therefore, her evidence need not be tested within the same amount of suspicion as that of an accomplice.

Corroboration specially the medical is not essentially required in this case.

In the case of Om Prakash Vs. State of U.P., (2006) SC 2214, Hon’ble Apex Court held that a rape accused could be convicted on the sole evidence of the victim, even if medical evidence did not prove rape. If for some reason the court finds it difficult to place implicit reliance on her sole testimony, it may look for evidence which may lend assurance to her testimony.

P.W.4 Dr. Gurmeet Kaur who has proved the medical report which was conducted on the very next day of the incident was examined. Doctor has stated that although there was no physical injuries and hymen was fractured and was healed, but there was bleeding in her private part. Although no definite opinion about the commission of rape has been given by the doctor, but it is relevant to mention that medical corroboration is not essentially required in sexual assault cases. Therefore, this argument is not acceptable.

The last argument raised in this case is that the police has made preliminary inquiry in this matter and submitted report before the trial court which has not been taken into consideration. In this regard it would suffice to note that on the date of incident a written report was given to the police station but FIR was not registered. It is only on the application given under Section 156(3) Cr.P.C. by the complainant and by order of Magistrate on that application FIR was got registered. So if on the application filed under Section 156(3) Cr.P.C., learned Magistrate has called a report from the police station then it was only for the purpose of whether any FIR was registered or not before passing an order under Section 156(3) Cr.P.C., which is still pre-cognizance stage. That report could not be said to be part of investigation of the incident which has been reported to the court and further to add that finding of the court below on paper Ex.Kha-1 is to the effect that there is no mention about the date of start and close of inquiry and there is no signature of Mr. Rajesh Kumar who conducted the inquiry. After considering the report learned Magistrate has passed order for registration of FIR. So I find that neither there is any substance nor merit in the arguments raised by learned counsel for the applicants-appellants.

In view of the aforesaid reasons and discussions, the findings of conviction and order of sentence recorded by the trial court against the accused appellant for the offence under Sections 452, 376 I.P.C. is hereby confirmed and maintained.

The appeal is accordingly dismissed.

Let a certified copy of the judgment along with original record be transmitted to the court concerned/jail authorities for compliance, if any.

Order Date :- 09.08.2018

Anand/-

 

 

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