HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 62 Reserved/AFR

Case :- CRIMINAL APPEAL No. – 2677 of 2014

Appellant :- Pawan Lodh

Respondent :- State Of U.P.

Counsel for Appellant :- Jay Babu Kesharwani,Mangla Prasad Rai

Counsel for Respondent :- Govt. Advocate

Hon’ble Krishna Pratap Singh,J.

This criminal appeal has been filed against a judgement and order dated 21.6.2014 passed by the Additional Sessions Judge, Court No. 2, Kaushambi in ST No. 92 of 2008 arising out of case crime No. 306 of 2007. By the impugned order the learned Additional Sessions Judge has convicted and sentenced the appellant Pawan Lodh to ten years rigorous imprisonment and a fine of Rs. 20,000/- under section 376 IPC and in default of payment of fine, the appellant was further directed to undergo two years’ rigorous imprisonment.

However, by the same order, the learned Additional Sessions Judge has acquitted the appellant under section 3(2)5 of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

The brief facts giving rise to the present appeal are that a written report was handed over by the complainant Sunder Lal on 24.12.2009 at 00.30 AM at the police station Paschim Sharira, district Kaushambi to the effect that the complainant is the resident of village Badi Atauli, police station Paschim Sharira. On 22.12.2009 at 7.00 PM, when her daughter (name withheld) aged about 13 years had gone to attend the call of nature, Pawan Lodh, who was lying in ambush in Arhar field of Shiv Singh Thakur, took away the victim forcibly and committed rape on her. The information about the said incident was given to him by his brother on telephone at Allahabad. On 23.122009 he came from Allahabad and has come to the police station to lodge the first information report.

On the basis of the aforesaid information, a Chik FIR at case crime No. 306 of 2009 was registered under section 376 IPC and 3(2)5 of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred to as the “SC and ST Act”) by PW-5 Ram Nihor Shukla.

As the case was under the SC and ST Act, the investigation of the case was taken up by PW-7 Shri Rajesh Kumar Yadav, Circle Officer, who copied the Chik FIR in the case diary and rushed to the police station Paschim Sharira, where he recorded the statement of the complainant and the victim and thereafter inspected the place of occurrence and prepared site plan, which he proved as Ext. Ka-6. After completing the necessary investigatory formalities, he submitted the charge sheet.

As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the court of Sessions where the case was registered as ST No. 92 of 2008. Learned Additional Sessions Judge, Fast Track Court No. 2, Kaushambi vide order dated 19.8.2008 framed the charges against the appellant under section 376 IPC and 3(2)5 of SC and ST Act, to which the appellant pleaded not guilty and claimed to be tried.

In order to prove the case beyond reasonable doubt, the prosecution has examined as many as eight witnesses. PW-1, Sunder Lal is the complainant of the case. PW-2 Usha is the mother of the victim. PW-3 Dr. Anoop Kumar Rastogi, who has conducted the x-ray of the victim for ascertaining her age. PW-4, is the victim of the case. PW-5 Ram Nihor Shukla, Constable Muharrir, who prepared the Chik FIR on the basis of written report. PW-6 Dr. Reeta Sinha, who conducted the medical examination of the victim. PW 7, Shri Rajesh Kumar yadav is the investigating officer of the case. PW-8 is Dr. S.K. Singh, the Pathologist, who conducted the smear test.

PW-1, Sundar Lal is the complaint of the case and father of the victim. He reiterated the versions given in the FIR. He further deposed that He is a rickshaw puller. The information about the incident was given to him by his brother Raju through rickshaw owner and when he reached to the owner of rickshaw at 10.000 PM, he asked him to go home as there is an urgent work, but as he could not get the conveyance in the night, he could not go to his house. The next day at about 7.00-8.00 AM he reached his house and when he reached home, his daughter, the victim told him that when she had gone to attend the call of nature, Pawan took her away forcibly and put her down, torn her clothes and committed rape on her. He also deposed that on 23.12.2007 when he was going to lodge the report, he met Sada Shiv Lodh, father of the accused Pawan Lodh, who threatened him to go back and compromise the matter, otherwise he will be killed. Thereafter, he returned to the village. Thereafter he went to the police station along with his daughter with different way on the same day and got the report lodged, which he proved as Ext. Ka-1.

PW-2 Usha is the mother of the victim. In her examination-in-chief she deposed that on the date of incident, she was at home. Her daughter had gone to attend the call of nature. She came back weeping and told her that she had gone to attend the call of nature in the field of Shiv Singh and after attending the call of nature when she was dressing herself, Pawan Lodh took her forcibly and after tearing her clothes, committed rape on her. She further deposed that she narrated the incident to her brother-in-law (Devar) Raju. Her husband used to pull rickshaw at Allahabad, who was called to the village by her Devar. On arrival of her husband, she narrated the story to him, who thereafter went to the police station to lodge the report. After lodging the report Circle Officer came to her place and enquired about the incident, to whom she also stated the same fact.

PW-3, Dr. Anoop Kumar Rastogi in his examination-in-chief has deposed that he has conducted the x-ray of the victim for ascertaining her age. He further deposed that as per x-ray the age of the victim was below 18 and above 16 years.

PW 4 is the victim and star witness of the case. She deposed that on the date of incident at about 7.00 PM she had gone to attend the call of nature in the wheat field. Besides the wheat field, there was an Arhar field. Both the fields belong to Shiv Singh of her village. Pawan Lodh, who lives in her village and to whom she knows very well, was lying in ambush in the Arhar field and after attending the call of nature, when she was tying her waistband, he came to her and caught hold of her. When she cried, he stuffed her mouth and dragged her to Arhar field and pulled her down and threatened her that if she cried out, she will be killed. After undressing her, he committed rape on her. In spite of her best effort, she could not get herself free from his clutches. She further deposed that the accused also threatened her to kill in case she narrates the matter to any one. On reaching home, she narrated the incident to her mother. Her father was not at home. He was at Allahabad. Her mother had called her father on the telephone through her uncle. On arrival of her father, her mother told him about the incident. Thereafter her father took her to the police station and lodged the FIR.

The evidence of PW-5 Shri Ram Nihor Shukla, Clerk Constable, who has prepared the Chik FIR and PW-7, Shri Rajesh Kumar Yadav, Circle Officer, who has conducted the investigation and filed the charge sheet, has already been discussed above.

PW-6, Dr. Reeta Sinha deposed that on 24.12.2007, she was posted at Primary Health Centre, Manjhanpur as Medical Officer. On that date she has conducted the medical examination of the victim, who was brought by lady Constable CP No. 222 Ranju Sonkar of police station Paschim Sharira. On her internal examination, she found the weight of the victim 30 kgs., teeth 14/14. There was no mark of injury on the person of the victim. Breast was fully developed. Pubic hair was present. There was no mark of injury on the vagina of the victim. Her vagina admits two finger easily. Hymen was old torn. For presence of spermatozoa, vaginal slide was prepared and sent to the pathologist and for ascertaining her age, she was advised x-ray. After receipt of x-ray and pathologist report, this witness has prepared a supplementary report in which she opined that no definite opinion about rape can be given as no spermatozoa was found on the vaginal smear. Dr. Reena Sinha further deposed that as per her opinion the age of the victim was about 16 years.

PW-8, Dr. S.K. Singh has deposed in his examination-in-chief that on 26.12.2007, he was posted at Moti Lal Nehru Hospital, Allahabad. On that date he has examined the vaginal smear slide of the victim. He opined that no sperm was found on the vaginal smear slide.

After the closure of prosecution evidence the statement of the accused-Pawan Lodh was recorded under section 313 Cr.P.C. in which he denied the charge levelled against him and stated that he has been falsely implicated in this case due to enmity.

After hearing the learned counsel for the parties and scrutinizing the evidence on record, the learned Additional Sessions Judge, Court No. 2, Kaushambi has convicted and sentenced the appellant as indicated in the first paragraph of the judgement.

Heard Shri Mangla Prasad Rai, learned counsel for the appellant and Shri Rizwan Siddiqui, learned Additional Government Advocate along with Mr. Vijay Kumar Mishra, learned Brief Holder for the State and gone through the record of the case.

Learned counsel for the appellant has argued that there was delay in lodging the first information report for which no plausible explanation has been given by the prosecution. Learned counsel for the appellant further argued that the appellant is innocent and has falsely been implicated. Learned counsel for the appellant argued that in the medical examination hymen of the victim was found old torn, which suggest that the victim was habitual to sexual intercourse. Learned counsel also argued that learned Trial Court has not appreciated the evidence on record in correct perspective and has convicted the appellants on the basis of conjectures and surmises.

On the other hand Shri Rizwan Siddiqui, learned Additional Government Advocate assisted by Shri Vijay Kumar Mishra, learned Brief Holder, supported the findings of the learned Trial Court and argued that the prosecution has discharged its burden by proving the case against the appellant beyond the hilt. He further contends that the judgement is well reasoned and calls for no interference by this Court.

So far as first contention of the learned counsel for the appellants that the FIR has been lodged with inordinate delay for which no plausible explanation has been given, is concerned, I find that the first informant in the FIR itself has stated that about the incident dated 22.12.2009, the information was given to him on telephone and he came to village on 23.12.2009 and lodged the FIR. The first informant in his evidence on oath has also stated that he is a rickshaw puller. The information about the incident was given to him by his brother Raju through rickshaw owner and when he reached to the owner of rickshaw at 10.00 PM, he asked him to go home as there is an urgent work, but as he could not get any conveyance in the night, he could not come to his house. The next day at about 7.00-8.00 AM he reached his house and when he reached his house, his daughter told him about the incident. It was also stated by the informant in his evidence on oath that on 23.12.2007, when he was going to lodge the report, Sada Shiv Lodh, father of the accused Pawan Lodh also threatened him of dire consequences, thereafter he returned back home and after some time he went to the police station by different way and lodged the report.

So, in my opinion, the delay in lodging the FIR has very well been explained by the prosecution. Further in a case under section 376 IPC, the delay, if explained properly, is not fatal to the prosecution case.

Hon’ble Supreme Court in the case of Ram Naresh and others Vs. State of Chhatisgarh, AIR 2012, SC 1357, has held that the delay, if any, in lodging the FIR, if explained properly, is in no way fatal to the case of the prosecution.

In Tara Singh and others Vs. State of Punjab, AIR 1991 SC 63, Hon’ble Supreme Court held that mere delay in lodging the FIR by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright.

The Court further held thus:

” It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”

In Zahoor and others Vs. State of U.P., AIR 1991 SC 40, Hon’ble Supreme Court held that mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication.

Hon’ble Supreme Court in State of Punjab Vs. Gurmit Singh and others, 1996 SCC (2) 384 Hon’ble Supreme Court held as under:

In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.

Therefore, I am of the opinion that the delay in lodging the first information report has properly been explained by the prosecution.

So far as the other contention of the learned counsel for the applicant that the applicant has falsely been implicated in this case is concerned, it has no leg to stand because neither any enmity of the appellant has been shown with the complainant nor any suggestion has been given to the prosecution about the enmity.

The argument of learned counsel for the appellant that as the hymen of the victim was found torn, which suggest that victim was habitual to intercourse. Assuming that the prosecutrix was earlier accustomed to sexual intercourse is not a question to be determined, but the question which is required to be decided in this case is as to whether the accused committed the rape on the victim on the date and place mentioned in the FIR. In this case the prosecution has fully proved the charge of rape against the appellant by cogent and conclusive evidence. Victim in her cross-examination that prior to this incident, no body has done such a misdeed with her nor has made any physical relation with her.

Similar question cropped up before Hon’ble Supreme Court in the case of State of UP Vs. Pappu alias Yunus and another, 2004 Supp (6) SCR 585. In that case the accused was acquitted by the Allahabad High Court on the ground that the prosecutrix was not having a good character and that she was a girl of easy virtues. The Medical evidence showed that she was habitual to sexual intercourse and there was no injury on her body. Hon’ble Supreme Court while setting aside the judgement of the High Court has held:

“Even assuming that the victim was previously accustomed sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.

It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do.”

In this case a very poor and minor girl of 16 years had been ravished by accused taking advantage of her loneliness and helplessness in the night when she had gone to the field to attend the call of nature, who must have undergone a traumatic experience.

Dealing with the offence of rape and its traumatic effect on victim of rape, Hon’ble Supreme Court in the case of State of Punjab Vs. Gurmit Singh, AIR 1996 SC 1393, Hon’ble Apex Court observed as under:

“Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation.

There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

In the case in hand, I find that the evidence of the prosecutrix is consistent. She has stated that she had gone to the Wheat field to attend the call of nature. Besides the wheat field, there was an Arhar field. Pawan Lodh, who lives in her village and to whom she knows very well, was lying in ambush in the Arhar field and after attending the call of nature, when she was tying her waistband, accused Pawan Lodh caught hold of her and after stuffing her mouth dragged her to Arhar field and pulled her down and after undressing her committed rape on her. She further stated that although she tried her best to get herself free from his clutches, but in vain. The accused Pawan Lodh also threatened her of dire consequences in case the matter is reported to anyone.

Moreover, the victim was put to lengthy cross-examination, but nothing adverse could be elicited from her mouth so as to make the prosecution story doubtful. I find no reason to disbelieve the evidence of the prosecutrix.

In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753, Hon’ble Supreme Court held thus:

In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile.”

Hon’ble Supreme Court in State Of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 AIR 658, 1990 SCR (1) 115 held thus:

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 and conscious of the 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 Court 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) to 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. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: “It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.”

Hon’ble Supreme Court in State of A.P. Vs. Bodem Sundara Rao, 1995 (6) SCC 230. has cautioned the Courts while dealing with the cases of sexual crime against women in the following words:

“Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with the cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.”

In Madan Gopal Kakkad vs Naval Dubey And another, 1992 SCR (2) 921, Hon’ble Supreme Court held:

“JUSTICE DEMANDS, THE COURT AWARDS”

Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.

We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.

In this case a heinous crime has been committed and the accused must suffer for its consequences. A rapist not only violates the victim personal integrity, but leaves indelible marks on the very soul of the helpless girl. In this case a minor girl aged 16-18 years had been ravished by the accused Pawan Lodh, who must have undergone a traumatic experience. As a matter of fact the crime is not only against the victim, it is against the whole society as well.

In view of the above discussion, I am of the view that the prosecution has fully established its case beyond reasonable doubt. The impugned judgement and order of conviction and sentence dated 21.6.2014 passed by the Additional Sessions Judge, Court No. 2, Kaushambi in ST No. 92 of 2008, which has been sought to be assailed, calls for no interference.

However, considering the submissions of the learned counsel for the appellant that the appellant does not have any criminal history and by now he is married and having children to support and there is no other person in the family to earn livelihood, I think the ends of justice would be met if the sentence of the appellant is reduced from ten years to nine years.

Accordingly, the sentence of the appellant of ten years rigorous imprisonment under section 376 IPC is modified and substituted by nine years.

With the aforesaid modification, this appeal is partly allowed.

The appellant is in jail. He shall remain in jail to serve out the remaining sentence awarded by the Trial Court. However, while deciding the period of sentence the authorities will take into consideration the remission of sentence which the accused-appellant is entitled to in law.

Office is directed to send a certified copy of this judgement to the learned Sessions Judge, Kaushambi for compliance and compliance report be positively submitted to this court within eight weeks.

Dated: 09.02.2018

Ishrat