HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 40
Case :- CRIMINAL APPEAL No. – 1343 of 2013
Appellant :- Pahalwan Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Santosh Kumar,Lalji Chaudhary,A.Curiae
Counsel for Respondent :- Govt. Advocate
Hon’ble Amreshwar Pratap Sahi,J.
Hon’ble Bachchoo Lal,J.
The appellant Pahalwan Singh has been convicted under Section 376 read with Section 323 IPC for physical assault and rape arising out of Case Crime No. 167 of 2008 in Sessions Trial No. 371 of 2008 P.S. Ghatampur District Kanpur Nagar to undergo life imprisonment coupled with fine of Rs. 5,000/- and in default to undergo further one year imprisonment. An additional 6 months rigorous imprisonment has also been awarded for having committed the offence under Section 323 IPC. All the sentences are to run concurrently.
The incident involves a nine year old girl daughter of one Ran Vijay who is the eldest brother of the first informant Rakesh Singh. The allegation contained in the F.I.R. is that on 21st April, 2008, the victim who had gone to attend a marriage ceremony at her cousin brother’s place in village Balahapara was returning back in the company of the appellant when she was assaulted and then raped at about 07:00 pm in the evening of the same day. The FIR further narrates that the cries raised by the victim had attracted the attention of two passersby namely Sunil Singh and Dharmendra Singh who rushed to the spot, and saw the appellant running away after committing the act and leaving behind the victim in an injured state. The FIR also narrates that the said witnesses were coming from village Balahapara when they saw this incident. The victim was taken to the hospital and then to the police station where the FIR is stated to have been lodged at 11:10 pm on the same day.
The medical examination was also conducted at about 11:35 pm at Community Health Center, Ghatampur by the Medical Officer Dr. Amar Singh who has been examined as PW-5. He has noted 6 injuries, and for injury No.6 he has noted the complain of bleeding by the victim and then advised her for expert examination at the Dufferin Hospital at Kanpur.
All the injuries were reported as fresh in nature. Injury Nos.1 and 6 were stated to have been caused by a hard and blunt object whereas injury Nos. 2, 3, 4 and 5 were abraided contusions and abrasions of various varieties.
The examination at Dufferin Hospital had been carried out by PW-6 Dr. Renu Singh and her radio-logical report was also prepared after an X-ray was carried out that indicated no bony injury. She was discharged on 23rd April, 2008 from the Hospital describing the nature of the injuries and the treatment advised. The clothes of the victim as well as that of the appellant were sent for forensic and Serological examination, the report whereof dated 15th May, 2008 is on record. A supplementary report dated 12th May, 2008 relating to the opinion of PW-6 is also on record together with her opinion on the pathological report.
The appellant was arrested on the next day of the incident i.e. 22nd April, 2008, and a pair of jeans which contained blood-stains were also recovered and sent for forensic examination. The clothes of the victim were also recovered on 25th April, 2008 and a memo was prepared which was also sent for the examination referred to hereinabove.
Four witnesses of fact deposed for the prosecution, out of which the victim PW-1 entered the witness box but her deposition was recorded as the Court found that she was incapable of being declined to be administered oath. However, her preliminary examination was recorded on 3rd March, 2009 whereafter her deposition was dispensed with by the Court.
PW-2 Rakesh Singh is the first informant and the uncle of the victim who deposed as PW-2, Dharmendra Singh who gave the eye-witness account in the company of Suneel Singh was examined as PW-3 and Suneel Singh was examined as PW-7.
The constable Head Clerk scribe who registered the FIR Ashok Kumar was examined as PW-4 and Dr. Amar Singh who carried out the first medical examination of the victim on 21.04.2008 at the Community Health Center Ghatampur at 11:35 pm was examined as PW-5. Dr. Renu Singh who conducted the internal examination of the victim and gave her opinion was examined as PW-6. Ram Kewat Sub-Inspector of Police is the Investigating Officer who was examined as PW-8.
The statement of the accused was recorded under 313 Cr.P.C. who denied his involvement and alleged false implication, whereafter the Trial Court proceed to consider the entire evidence and came to the conclusion that the testimony of PW-2, PW-3 and PW-7 coupled with the corroborative evidence of the other witnesses was sufficient to establish the commission of the offence by the appellant who was identified as the culprit and the injuries as per the medical examination report clearly supported the prosecution version.
On the issue of examination of the victim, the Court held that since the testimony of the victim had been dispensed with as she was incapable of testifying, therefore, the same did not create any adverse impact on the prosecution story which was otherwise intact in view of the entire evidence on record. The appellant was accordingly, convicted for life imprisonment and sentenced accordingly, hence this appeal.
We may put on record that the appellant had been defended before the trial Court by an Amicus Curiae, as he had been unable to engage the professional services of any lawyer before the Trial Court. The same situation existed before this Court after the filing of the appeal as well as a consequence whereof Sri Lal Ji Chaudhari was finally appointed as Amicus Curiae who conduct the hearing on behalf of the appellant in the present case.
Accordingly, we have heard Sri Lal Ji Chaudhari, learned counsel for the appellant and the learned AGA Sri Ajit Ray who has advanced his submissions in response.
Sri Lal ji Chaudhari, learned counsel for the appellant has urged that the Trial Court had completely omitted to consider the inconsistency in the statements of PW-3 and PW-7 Dharmendra Singh and Suneel Singh who are the main eye-witnesses, and in view of the inconsistency described by him, he submits that the evidence of these two witnesses is not creditworthy and deserves to be discarded.
He further submits that failure on the part of the prosecution and the absence of any testimony of the prosecutrix further strengthens to the doubt about the participation of the appellant and his involvement in the offence. In such circumstances, if the prosecution has failed to lead evidence, which was the best possible evidence to substantiate and prove the case against the appellant, then in that event, the appellant is entitled to the benefit of doubt and he deserves to be acquitted.
He has then urged that the statement of these witnesses, if compared with the site plan as prepared by PW-8 the Investigating Officer demonstrates that the arrival of the witnesses clearly belies their presence at the scene of occurrence. He has specifically pointed out to the discrepancy relating to the direction of approach as described by PW-3 and PW-7 in their statements at the scene of occurrence, and they being opposite to each other, he submits that their statement that they were travelling together is unacceptable.
He has also urged that the evidence of Dr. Renu Singh PW-6 also opines that the injury may have been caused on account of fall on a hard and blunt object and in the absence of any direct ocular testimony with regard to the allegation of the commission of the offence of rape, the prosecution having failed to investigate this part of the theory, and the Trial Court also having failed to make any inquiry on the same, the benefit of doubt should accrue to the appellant.
He further submits that the discrepancies being material on the issue of the evidence relating to the commission of the offence of rape and also the identity of the appellant, the conviction cannot survive the scrutiny of law.
Replying to the said submissions, learned AGA Sri Ajit Ray submits that the discrepancies if any are minor in relation to the direction of the arrival of the witnesses on the scene, but the fact remains that the place of occurrence, the timing of the incident, the medico legal opinion and the manner of the commission of the offence all remain intact.
He therefore submits that even if the Court did not permit the deposition of the prosecutrix, keeping in view her tender age, the same was well within its discretion in terms of Section 118 of the Indian Evidence Act. He therefore submits that on the other material available on record, the presumption which can be drawn in terms of Section 114 of the Indian Evidence Act was rightly attempted by the Trial Court which has been established by the evidence on record, and therefore, the court below cannot be said to have acted perversely or to have omitted to consider any vital material evidence that may be of any advantage to the appellant. He submits that merely because of a variation in the direction of approach of PW-3 and PW-7 appears to be contradictory, the same does not belie the basic prosecution story of the commission of the offence by the appellant which stands strongly corroborated by the medico legal evidence, and is further strengthened by the consistent testimony of the commission of the offence as narrated by the prosecution witnesses. He also submits that the formal witnesses namely the two doctors PW-5 and PW-6, as well as the Investigating Officer PW-8 have confirmed the material which was adduced as evidence whereby not only the injuries stand explained but also the presence of the witnesses stands fixed, and the involvement of the appellant in the commission of the offence is clearly made out. He therefore submits that the judgment of the Trial Court does not require any interference on any of the grounds raised in the appeal.
We have considered the submissions raised, and we find that the trial Court has adopted a very strange procedure of not proceeding to record the deposition of the victim who was a 9 year old girl, on the ground that she was not capable of deposing on oath. We find this observation of the trial even in the judgment as well as in the order dated 3rd March, 2009, wherein the trial court has recorded that the victim was not capable of deposing on oath. The trial court completely overlooked the fact that after it had put the questions to the victim as a preliminary examination which is also commonly known as the voire dire test, she did reply to some of the questions rationally. She has also described that she was a student of class two, and on the question as to whether one should speak the truth or lies, she categorically stated that one should speak the truth. She could not however explain the meaning of swearing before a Court.
In our considered opinion, the replies given by the girl were not incoherent so as to incapacitate her totally from deposing before the Court. It has time and again been ruled that even if a child witness is not capable of being administered oath, the same does not absolve the duty of the Court to record her deposition. We find no reason much less a plausible reason for the trial court to have given up this line of enquiry during trial and the failure on the part of the trial court to do so in the facts of the present case was a complete miscarriage of justice. The trial court should have allowed the victim to give her statement more particularly when from the medico legal examination and the deposition of PW-5 we find that the victim herself had pointed out to the doctor that she was feeling pain in her private parts and was bleeding. It is therefore evident that she was capable of narrating her own pain, and we find that the trial court even though noted this, completely overlooked this aspect of the matter while declining to record her deposition. Nonetheless, the evidence is on record, inasmuch as, the doctor who first examined her at the Community Health Center, Ghatampur namely PW-5 has categorically recorded in his report that the victim was advised for expert opinion to get her injury no. 6 examined on the complaint made by her. We find the complain of pain and bleeding to be supported by his deposition in Court. In the aforesaid circumstances, it cannot be said that the victim was totally incapable as a child witness to get her statement recorded before the Court for a description of the physical assault on her. She also does not appear to have refused to make a statement or was in any traumatic condition so as to reflect any incapacity on her part.
To add to her woes, we also find that the Investigating Officer for reasons best known to him, after having recorded the statement of the victim under 161 Cr.P.C. failed to produce her before a Magistrate to get her statement recorded under 164 Cr.P.C.
However, any such failure on the part of the investigation or even on the part of the Court to allow the victim to depose before the Court cannot in any way, be construed as an indicator of the incompetence of the victim to describe the pain and suffering that she had to undergo on account of the assault on her.
We now come to the deposition of PW-8 the Investigating Officer. He has proved the two recoveries namely the recovery of the clothes of the appellant upon his arrest which was a pair of jeans that had blood stains and the clothes of the victim that were recovered, and the recovery memo was prepared to that effect. Both the recovery memos have been proved by him in his deposition. The same were also sent for forensic report that has also been proved by him. It is thus evident that the investigation was carried out promptly, and a forensic report was obtained which categorically records the presence of human blood on the jeans that were recovered and said to be belonging to the appellant that was worn by him on the date of the incident and on the frock and the skirt of the victim was also found to be stained with blood. Further human semen was found on the jeans of the appellant. The Forensic Laboratory Report dated 15th May, 2008 therefore also supports the prosecution story that has been substantiated by PW-8.
With the aforesaid evidence, we now come to the medical evidence which is on record. The first medico legal report that was after examining the victim on the day of the incident itself describes six injuries. The first is a contused swelling just below the right side on the face. The second injury is abraded contusion on the lower lips. The third injury is of an abrasion in a big area of 8cmx6cm on the front of the neck below the mandible. The fourth injury is a linear abrasion on the right arm. A similar abrasion is on the left wrist of the left arm. The sixth injury is of the offence of rape which describes that the vagina was torn and bleeding and was referred to the Dufferin Hospital for expert opinion. The supplementary report prepared at the Dufferin Hospital indicates that the injury was caused by a hard and blunt object may be by an erected penis, and therefore the possibility of rape cannot be ruled out.
However, the pathological report indicates that no spermatozoa was seen, and the radio-logical report indicates that there is no bony injury. The victim had been admitted in the hospital for a day and she was discharged on 23rd April, 2008. The discharge slip which was also on record and exhibited and has been proved clearly records a para-urethral laceration with a perineal tear of about one inch length and depth of 1/2cm at 07:00 o’ clock position. She was advised medicines and for a further check up after a week. The aforesaid medical reports have been substantiated categorically by Dr. Amar Singh PW-5 and Dr. Renu Singh PW-6.
PW-5 has proved all the contents of the report and has reiterated that it was on her complaint about the bleeding in her private parts that she was sent for forensic examination. He has on cross examination categorically stated that during examination, the victim complained of pain and it is for this reason that he had sent her for expert medical examination. The deposition of PW-6 Dr. Renu Singh gynecologist also corroborates the report as well as the discharge slip prepared at the hospital on the next day with an indication that there was no spermatozoa was found, but she categorically explained that the injury could have been caused by a hard and blunt object. The possibility of rape was clearly opined. She however stated that this injury could also be caused by falling down on a hard and blunt object.
Sri Chaudhari for the appellant submitted that no definite opinion of rape could be found on the basis of such medical evidence which is not supported by the ocular testimony.
We have gone through the medical and forensic reports in detail, and there cannot be a second opinion about the commission of the offence, keeping in view, the nature of the injury more particularly which has been categorically described at the time of the discharge of the victim from hospital. The said documents have been proved and which leaves no room for doubt that she was subjected to a brutal rape. Injury no.1 which is a contusion on the head, and injuries 2 to 5 which are abrasions on the lip, the neck and the arms are sufficient indicators that the victim was first pinned down forcibly and the injuries were sustained on account of a struggle put forth by her. Her weak stature and almost helpless state was taken undue advantage of where after injury no.6 was caused penetrating and rupturing her private part evidenced by bleeding.
We now proceed to examine the oral testimony of PW-2, PW-3 and PW-7.
PW-2 Rakesh Singh is the uncle of the victim. He got the FIR transcribed on the basis of the information that he received from the victim, PW-3 and PW-7. His narration of facts, therefore, have to be read in conjunction with the testimony of the victim and the other two witnesses. As noted above, even though the statement of the victim where she narrated the entire assault was recorded by the Investigating Officer during investigation under 161 Cr.P.C., he did not choose to present her before the Magistrate for any statement under 164 Cr.P.C. The prosecutrix was however produced by the prosecution before the Court, but it was on account of the intervention of the Court that she could not depose and get her statement recorded.
In this background, the testimony of PW-3 and PW-7 assumes importance. PW-3 Dharmendra Singh has stated that he along with Sunil was coming back to his village Jalala from Balahapara. It was about 300 to 400 meters away from Balahapara that he and Sunil heard the cries of the victim and they rushed towards the scene of occurrence which was a harvested wheat field, and found that the appellant upon seeing them lifted himself and fled away leaving behind the victim in an injured state. He saw this with his own eyes along with PW-7 from a distance of about 30 meters. The timing of the incident is about 07:00 pm in the month of April, and it is quite possible that there was enough light available for the appellant to have been identified by PW-3, moreso when he lived in the same village as PW-3 and was known to the family of the victim.
The description of PW-3 of coming back to his village Jalala also does not seem to the untrustworthy, inasmuch as, he is a resident of Jalala and must have been travelling from Balahapara, after having attended the marriage of Santosh. This seems to be a natural course of conduct and he was walking along with Sunil towards the village also appears to be normal, keeping in view, the distance between the two places. It is also evident that Dharmendra is stated to have not returned back to Jalala, and rather lifted the victim and took her to village Balahapara from where she was carried on a motorcycle to the hospital and then to the police station. It is correct that the timing of arrival at the hospital is 11:35 pm which indicates the timing of the examination of the victim whereas the registration of the FIR is 11:10 pm. This small variation in recording of the timing in the FIR does not in any way amount to any material contradiction of the prosecution story, inasmuch as, the FIR has been lodged promptly after about three and a half to four hours after the incident. The timing of the incident therefore does not vary. The registration of the FIR and the examination at the Community Health Center, Ghatampur of the victim almost appears to be simultaneous, inasmuch as, the witness has categorically stated that it took 10 to 15 minutes to reach the police station from the hospital. It is thus evident that the testimony of PW-3 Dharmendra Singh appears to be almost accurate, and it fixes the timing of the incident. The medical report also categorically states that the duration of the injuries are fresh. In such circumstances, there is no reason to discredit the testimony of Dharmendra Singh PW-3.
There is a variation in the statement of PW-7 Sunil Singh, inasmuch as, he has stated that he was travelling from Jalala to Balahapara. This obviously is the opposite direction and not the same direction in which these two witnesses are stated to be travelling by PW-2 and PW-3. What appears is that at the time of the incident PW-7 may have arrived who is a resident of village Balahapara, and the incident has taken place at a very short distance of 300 to 400 meters or approximately half kilometer away from Balahapara. Both the witnesses have indicated that Ratanpur is a village which is almost one and a half kilometer away from Balahapara, and the incident had taken place almost midway between Balahapara and Ratanpur. In such circumstances, the description given by PW-7 of his travelling from Jalala to Balahapara may not be in the appropriate direction, but the description of the place of incident by all the witnesses is one and the same. The victim being picked up from the same place and carried to Balahapara is also consistent and then her treatment at the hospital and further being brought to the police station also does not vary in material contents.
The contention of Sri Chaudhari that the variation was material therefore does not appeal to us, and the fact of the occurrence of incident and the involvement of the accused therefore cannot be discredited on this account. There is no other hypothesis to disbelieve the prosecution version.
The background in which, the victim is said to have been in the company of the appellant also appears to be not only possible but probable, inasmuch as, all of them had gone to attend the marriage of Santosh at village Balahapara from where they were returning. The appellant is said to have accompanied the victim from Balahapara where she had also gone to attend the ceremony. There is one more feature which deserves mention namely that the victim had already lost her mother who died some time ago. Her father Ran Vijay was away at Bombay earning his livelihood. The appellant accused may have found this opportunity to have committed the offence, inasmuch as, she was living at Jalala with her grandmother and brother Vipul Singh. In the above background and circumstances, the appellant who was working as a farm hand in the same village of Jalala with one Indrapal Singh, and who was well acquainted with the family of the victim might have accompanied her and the victim had every reason to trust the company of the the appellant. She therefore did not find it unsafe to accompany the appellant back to her village Jalala.
In the given circumstances, we have no reason therefore to disbelieve the entire prosecution story which stands corroborated by the evidence referred to hereinabove, even in the absence of a direct deposition of the victim. The Apex Court in a recent decision has held that even if the victim has not been able to depose and the Court has been unable to record evidence, then too even the conviction can be sustained if the corroborative evidence, and the ocular testimony supports the prosecution story. The same is reported in AIR 2017 Supreme Court page 5414 State of Maharashtra Vs. Bandu.
Apart from this, the provisions of Section 114 of the Indian Evidence Act, 1872 on the basis of the evidence that has been adduced in the present case raises a valid presumption which the defence has failed to dislodge in terms of Section 106 of the Act. Apart from this, non examination of the prosecutrix cannot be a ground to disbelieve the prosecution story, keeping in view the discretion which can be exercised by the trial court in terms of Section 118 of the Indian Evidence Act, 1872 which applies squarely on the facts of the present case.
Consequently, for all the aforesaid reasons, we see no material so as to reverse the conviction recorded by the trial court.
On the issue of sentence Sri Lal Ji Chaudhari has urged that the appellant has suffered incarceration for almost ten years as he was neither granted bail before the Court below and he continues to be in jail even today. He submits that in view of the weak nature of the evidence that has come forth which casts a doubt on the involvement of the appellant, and the status of the prosecution witnesses there was a possibility of the appellant having been falsely implicated due to village party politics. He appears to have been implicated in the case where he does not deserve the maximum punishment of life imprisonment.
Learned AGA has opposed these contentions urging that the aforesaid factors are nowhere available for the purpose of determining the quantum of sentence which has to be commensurate and proportionate to the gravity of the offfence and the tender age of the victim. He submits that the same being a social crime not only against an individual, but against the society at large, the trial court has not committed any error in awarding the maximum penalty to the appellant. Apart from this, the submissions raised is that the period of incarceration cannot be a ground so as to construe it to be a mitigating circumstance for the purpose of reducing the sentence.
Having considered the submissions raised, and in view of the circumstances of the case, and the manner in which, the prosecution proceeded to establish its case before the Court, and the other factors discussed hereinabove, we find that the appellant at present has suffered more than ten years of incarceration and is about 44 years of age. In the background, we find that the interest of justice would be met if the punishment of the appellant is reduced to 15 years rigorous imprisonment.
We accordingly, modify the sentence of the trial court whereby the appellant has been awarded life imprisonment and commute it to 15 years rigorous imprisonment. The rest of the punishments awarded by the trial court are confirmed. The appellant shall accordingly serve out the sentence as per this judgment.
The appeal stands partly allowed.
The Registrar General and the Legal Services Aid Authority of Allahabad High Court are directed to pay a sum of Rs. 10,000/- to Sri Lal Ji Chaudhari, who has pleaded and assisted this Court as Amicus Curiae, as his professional fee.
Order Date :- 16.8.2018