HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 26.11.2018
Delivered on 06.12.2018
Court No. – 34
Case :- JAIL APPEAL No. – 4843 of 2011
Appellant :- Ram Pravesh
Respondent :- State
Counsel for Appellant :- Kanchan Chaudhary (A.C.)
Counsel for Respondent :- A. G. A., Udit Chandra.
Hon’ble Sudhir Agarwal,J.
Hon’ble Ram Krishna Gautam,J.
(Delivered by Hon’ble Ram Krishna Gautam,J.)
1. This appeal u/s 374(2) of Cr.P.C. has been filed by the person convicted and sentenced in S.T. No. 257 of 2003 u/s 376(2), 323 I.P.C., P.S. Surajpur, of Sessions Division Gautam Buddh Nagar, through Superintendent Jail, Agra, u/s 383 Cr.P.C. as Jail Appeal against the judgment dated 30.1.2006 passed by Additional Sessions Judge /F.T.C. No. 1, Gautam Buddh Nagar, wherein learned Additional Sessions Judge has convicted appellant Ram Pravesh for the offence punishable u/s 376(2), 323 I.P.C. related with Case Crime No. 30 of 2003, P.S. Surajpur, District Gautam Buddh Nagar, and thereby sentenced him for life imprisonment and fine of Rs. 10,000/- for the offence punishable u/s 376(2) I.P.C. and simple imprisonment of six months for the offence punishable u/s 323 I.P.C. In case of failure of payment of fine, convict was to further undergo simple imprisonment of six months. He was acquitted for the charge of offence punishable u/s 308 I.P.C.
2. In brief the contention of memorandum of appeal is that the learned Additional Sessions Judge has failed to consider the facts and law placed before it. Evidence were not properly appreciated. The legal propositions were not taken care of. There were contradictions in the testimonies of the prosecution witnesses and the prosecution has utterly failed to prove its case. There was no mark of injury over private part of the prosecutrix, hence the offence punishable u/s 376(2) I.P.C. was not made out. There was no trustworthiness of prosecution witnesses. No independent witnesses were examined, rather the witnesses examined were interested witnesses. Prosecution witness no. 2 Km. Anju has not corroborated the prosecution version. The appellant, being a poor person, is languishing in jail since 23.4.2003, hence this appeal for setting aside the judgment of conviction and sentencing made therein.
3. Heard Ms. Kanchan Chaudhary, learned Amicus Curiae, for the appellant, and Sri Udit Chandra, learned AGA, for the State and have gone through the judgment and the record of the case.
4. From the perusal of the record it is apparent that Case Crime No. 30 of 2003, u/s 376, 323 I.P.C. was got registered at Police station Surajpur, District Gautam Buddh Nagar, on 8.4.2003 at 17.35 hours, upon the report of Baleshwar, son of Sri Ram, resident of village Shahadra, P.S. Surajpur, District Gautam Buddh Nagar, against Ram Pravesh, son of Ramphool, resident of Garhi Shahadra, P.S. Surajpur, District Gautam Buddh Nagar, with the allegation that the complainant Baleshwar had gone to Faridabad on 7.4.2003 for having medicines of his mother. His wife and two daughters i.e. Anju aged about 12 years and Mona aged about 5 years were at their home. When he came back in late hours his wife Jaymala apprised him that his both the daughters were at the field at about 1.30 P.M. to ease and the elder one came back to her, under weeping position, who narrated that Mona was dragged by Ram Pravesh of village Garhi Shahadra in the field of one Jai. She instantly rushed to the spot and found that Mona was put under naked position by Ram Pravesh, who himself was naked and was committing rape with her. She gave a blow of a danda to him and in response he assaulted her and Anju too was beaten by him while Mona was caught by her and rescue call was made then Ram Pravesh ran away from the spot. This occurrence of commission rape was witnessed by the complainant’s wife herself and some other had seen him while running from the spot, hence this report for taking legal recourse. The investigation proceeded. Clothes of Km. Mona were taken in possession. They were sealed. Medico legal examination of Anju, Mona and Smt. Jaymala were got done on the letter of the Station Officer concerned. They were referred for ossification test. Their reports including pathological report and ossification test reports were obtained and supplementary reports were prepared. Dead spermatozoas were found in the vaginal smear of Anju as well as Mona. The age of Mona was fixed to be of five years. Accused Ram Pravesh along with one Pappu, son of Raju, resident of Garhi Shahadara, P.S. Surajpur, District Gautam Buddh Nagar, were apprehended by the S.I. K. K. Dwivedi on 22.4.2003 from the side office situated at abut 100 yards on Express Highway, and upon their personal search a country made Tamancha with a cartridge of .12 bore was recovered from the possession of Ram Pravesh and two cartridges of 12 bore, one live and one empty, were recovered from the possession of Pappu. Those were kept under seal, on the spot, recovery memos were prepared and both of those apprehended accused confessed their guilt of commission of rape with the prosecutrix, as above. The complainant, his wife and his two daughters Mona and Anju rushed on the spot and they identified that Pappu had extended threat and abuse to those victims and Ram Pravesh had committed rape with Mona. By presenting above recovery memos at Police Station two separate Case Crime no. 41 of 2003 u/s 25 Arms Act against Ram Pravesh and Case Crime No. 42 of 2003 u/s 25 Arms Act against Pappu were got registered at P.S. Surajpur on 22.4.2003 upon recovery memos prepared by S.I. K. K. Dwivedi. After investigation of those cases under Arms Act sanction u/s 39 of Arms Act was given by the District Magistrate for prosecution of Ram Pravesh and charge sheet u/s 25 Arms Act was filed. The C.J.M., Gautam Buddh Nagar, took cognizance over the charge sheet, submitted against Ram Pravesh, for the offence u/s 376, 323, 308 I.P.C. As the offences u/s 376 and 308 I.P.C. were exclusively trible by the Court of Sessions, hence the C.J.M., Gautam Buddh Nagar, vide order dated 2.6.2003 made committal of the case to the court of Sessions. The case u/s 25 Arms Act was also committed to the Court of Sessions because of its being related to the above mentioned Sessions Trial.
5. Learned Additional Sessions Judge after hearing learned counsel for the parties leveled charge for the offences punishable u/s 376, 323/34 and 308/34 I.P.C. against accused Ram Pravesh and Pappu. These were read over and explained to those accused persons, who pleaded not guilty and claimed for trial.
6. Joint trial of S.T. No. 259 of 2003, u/s 25 Arms Act against Ram Pravesh was made with the leading trial of S.T. No. 257 of 2003.
7. Accused Ram Pravesh pleaded not guilty for the offence punishable u/s 25 Arms Act, levelled against him and claimed for trial.
8. examined PW1- Km. Mona, PW2- Km. Anju, PW3- the complainant Baleshwar, PW4- Jaymala, PW5-S.I. Jagdish Singh Solanki, PW6- Radiologist Dr. R. K. Upadhyay, PW7- Dr. Rita Bandhwa, PW8- Yagdutt Sharma, PW9-Dr. Vikram Singh, PW10- Ravi Kant and PW11- S.I. K.K. Dwivedi.
9. Accused Ram Pravesh was under trial whereas co-accused Pappu was on bail. He absconded by misusing bail. Thereafter learned Additional Sessions Judge, vide order dated 26.6.2005, got the file of co-accused Pappu separated and thus, trial proceeded against accused Ram Pravesh only.
10. For explaining the incriminating evidence given by prosecution and providing an opportunity to accused for giving his version, he was examined u/s 313 Cr.P.C. in which he said the prosecution witnesses to be untrustworthy and have given evidence incorrectly owing to enmity. No evidence in defence was given by him.
11. Trial court had extended the services of Amicus Curiae Sri Dinesh Chandra for the accused. His arguments were heard and judgment of conviction having punishments as mentioned above for the offences punishable u/s 376(2) and 323 I.P.C. with an acquittal for offence u/s 308 I.P.C. and for charge of offence punishable u/s 25 Arms Act in connected Sessions Trial No. 259 of 2003 was made.
12. No appeal by State against the judgment of acquittal for offence of charge u/s 308 I.P.C. or u/s 25 Arms Act in S.T. No. 259 of 2003 has been made, hence for disposal of this appeal the same is not related except the conviction and sentencing made against the appellant for which this appeal is before this court in its appellate jurisdiction.
“Though the appellate court has the same powers as the trial Court of appreciating evidence and coming to its own conclusion on questions of fact, it should not interfere with an acquittal, unless it finds that the view taken by the trial Court is unreasonable or perverse. If the view taken by the trial Court is a reasonably possible view, the appellate court should not disturb an acquittal merely because it thinks that another view is better or more preferable.”
14. In the present appeal contention of appellant is that Trial Court has failed to appreciate the fact and law properly. For adjudging non-application of mind, in Oil Natural Gas Corpn.Ltd vs Western Geco International Ltd (2014)9 SCC 263, Court has propounded as under:
“Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the Court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian Law.”
15. Km. Mona (PW1) being a minor and child witness was examined by court below for her competence and ability to understand the questions and reply the same properly and same is written with a certificate of Presiding Judge dated 22.10.2003 that she was competent to be a witness of prosecution. She in her examination in chief has stated on oath that while being at field along with her elder sister Anju for outdoor defecating at noon, she met with accused Ram Pravesh, present in the docket of the court, who caught hold of her and did a bite on her cheek. He slept on her and she was put under naked position then accused Ram Pravesh put off his clothes and committed rape with her. She bleeded from her vagina. She was medically examined. She was partly cross-examined on the date of examination in chief in which she reiterated her statement given in examination in chief. Again she was resumed for cross-examination on 29.8.2005 by order dated 23.6.2005 and cross-examined by Amicus Curiae. She has stated that one other person was there with accused Ram Pravesh and he committed rape with her.
^^ eqyfte us esjs lkFk ekjihV dh] xky ij [kk;k vkSj vkW[k ij pksV ekjhA xUnh xUnh ckr djhA blesa esjs diMs mrkjs rFkk eqs uaxk djds is’kkc djus okyh txg ij is’kkc okyh txg yxk nhA esjh cgu ds lkFk ekjihV dh Fkh rFkk og eEeh ls dgus pyh x;h FkhA esj lkFk cqjk dke eqfYte gkftj vnkyr us fd;k FkkA^^”
16. Leading suggestive questions were put to her that she was telling a lie under pretext and direction of her parents. But these questions have been answered in negative.
17. On the over all appreciation of the testimony of this witness we find that she is a natural and fully intact witness with no contradictions, exaggerations or embellishments. Her testimony is medically corroborated by the testimony of PW7-Dr. Ritu Bandhwa, who has said that while being posted as Senior Consultant at Government Hospital, Sector 30, Gautam Buddh Nagar, she had examined Km. Mona, D/o Baleshwar, R/o Shahadra, P.S. Surajpur, District Gautam Buddh Nagar, brought and identified by Constable 279 Bijendra Singh of P.S. Surajpur. On external examination her height was 102 cm, weight 12 Kg, teeth 6+6/6+6, breast was not developed, pubic and auxiliary hairs were not developed. The following injuries were found on her body:
(1) Reddish contusion 6×4 cm below left eye over face.
(2) Injury over right side of face just below right ear size 4×2 cm.
(3) Abraded abrasion size 1×1 cm right side of cheek
(4) Multiple injuries with the longest one size 13 cm x 4 cm and the smallest one size 3 cm x 1 cm on the back side.
(5) Lacerated wound 4 cm x 2 cm on left knee.
(6) Cut wound 2 cm x 1 cm on the left side of face.
All these injuries were of hard and blunt object and caused within 36 hours.
In the internal examination there was no mark of injury over private part except the torning of hymen with a prescience of pain and laceration. Vaginal muscle was torn and fresh torn of hymen red and credanatous. Swelling and tenderness over anal opening. Vaginal smear was taken over a slide. Reference was made for ossification test and radiological examination of wrist, knee joint and ankle joint as well pathological examination of spermatozoa in the vaginal smear, taken on the slide.
18. This medical examination report was prepared under the handwriting and signature of this Medical Officer with having finger impression of the girl examined over it. The same is on record, proved and exhibited as exhibit Ka 10. On the basis of pathological report and ossification test a supplementary report was prepared in continuation medico legal examination report of Km. Mona in the handwriting and signature of this witness on 17.4.2003 in which dead spermatozoa coupled with red blood cells were found by the pathologist in the vaginal smear of Km. Mona. Her epiphysis were not fused and her age was determined to be of five years. There was a clear opinion of commission of rape with Mona. Supplementary report was also proved and exhibited as exhibit Ka-13. In cross-examination this has specifically been stated that Km. Mona was having six external injuries and she might have been subjected to rape and it was impossible for the torning of hymen under any type of quarrel and this medical officer was of definite opinion of commission rape with Mona. There were no contradictions, exaggerations and embellishments in the testimony of this witness nor her testimony was disputed by the accused in his statement recorded u/s 313 Cr.P.C. Hence, the testimony of this prosecution witness Km. Mona, corroborated with the testimony of the Medical Officer, has fully established the offence of rape and giving injury by the convict Ram Pravesh over the person of Km. Mona punishable u/s 376(2) and 323 I.P.C.
19. This has further been substantiated by the statement of PW2-Km. Anju, who in her statement on oath, in the examination in chief, has said that while she, along with her younger sister Mona was in the field for outdoor defecating, accused Ram Pravesh and Pappu met with them and Ram Pravesh caught her and she was being dragged in the field of Jai. She rescued herself by using force and came to home to complain her mother. But Mona could not be rescued and she was caught hold by the accused Ram Pravesh. This witness, along with her mother, came on the spot and found Ram Pravesh lying over the person of Mona. Her mother gave a blow of danda to Ram Pravesh, who retaliated with the same danda and assaulted them. She was not subjected to rape by any of the accused Pappu and Ram Pravesh, present in the docket of the court. Upon request of the Prosecutor this witness was declared hostile and she was cross-examined in which she stated that accused Pappu had come to their parents and had requested them for leaving him. A suggestive question has been put to this witness that after getting free from Ram Pravesh, Pappu attempted to catch hold of her. This has been answered in negative. She has categorically stated that when she, along with her mother reached on the spot, Ram Pravesh was committing rape with Mona. Again a suggestive question was put to her that co-accused Pappu has committed rape with her. She gave answer in negative. Since the trial of co-accused Pappu was not going on, hence this question has no relevance in the present case. The answers given to the suggestive questions by this witness reveals that there had occurred such occurrence of rape. In the course of examination made by learned counsel for the accused Ram Pravesh this has been specifically answered in positive that co-accused Pappu was in the company of accused Ram Pravesh and it was Ram Pravesh, who was trying to drag this witness in the field but she, by use of force, could save her. Further a suggestive question was given to this witness that when she had come back on the spot with her mother, accused Ram Pravesh was lying over Mona. This leading suggestive question itself shows that the accused Ram Pravesh is admitting that he was lying over Mona, which was witnessed by those two witnesses. Hence, this witness is fully intact and trustworthy regarding the charge against accused Ram Pravesh. There is no contradiction in her testimony. Upon request of Amicus Curiae this witness was again recalled in which she had reiterated her previous statement.
20. PW3 Baleshwar is complainant, who was not present on the spot. On oath he has stated that on 7.4.2003 he was at Faridabad with regard to medicine of his mother and when he came back, his wife Jaymala apprised him about the occurrence, which was narrated by Anju to her, she rushed to the spot instantly and saw that rape was being committed by Ram Pravesh with Mona. She tried to assault Ram Pravesh by a danda but Ram Pravesh counter assaulted her and ran away from the spot. This witness returned at his home at 8.00 P.M. on 7.4.2003 when this was told to him by his wife Jayamala and his two daughters. Owing to non-availability of means, he could not reach the police station in the night but on the next day i.e. 8.4.2003 he, along with his wife and two daughters, went to the police station and submitted his report, in his handwriting and signature, which is paper no. 4A/2 on record. This was proved by this witness to be the same report, which was submitted by him at the police station and there is his handwriting and signature and this was exhibited as exhibit Ka 20. He further stated that his wife and both the daughters were got medically examined at the behest of the police. In the cross-examination he has stated that the police station was about 10 Kms away from his village and he had reached at police station between 4.30 to 5.00 P.M. on that date i.e. 8.4.2003. Prior to it he had complained the occurrence at about 7.00 A.M. to Village Pradhan. He was accompanied by his wife and both of his daughters at the time of presenting this report. Their medical examination was conducted at 8.00 P.M. on 8.4.2003. He was acquainted with Ram Pravesh, prior to this occurrence, because he was of nearby village. There is no contradiction, exaggeration including embellishment in his testimony. He is a fully reliable and trustworthy witness.
21. PW4- Jayamala, wife of the complainant Baleshwar, was an eyewitness account. She has stated on oath in her examination in chief that when she got information of the occurrence by her elder daughter Km. Anju, she immediately rushed to the spot where she saw that accused Ram Pravesh was committing rape with her younger daughter. She had delivered inner garments and frock of the victim Mona to the police and recovery memo of the same were prepared under her signature. The same are on record as paper no. 6Ka/1 and 6 Ka/2, which have been proved by this witness and have been exhibited as material exhibit 1 and 2. She was medically examined. Her two daughters were also medically examined. Material exhibit 1 is the inner lower garment and material exhibit 2 is the frock of the victim Mona. In her cross-examination she has stated that it took hardly ten minutes to come to the spot after getting information and she found Ram Pravesh committing rape with Mona. She intervened but was assaulted by Ram Pravesh. The investigating officer has recorded her statement. Identity of the accused Ram Pravesh was established even in the cross-examination. The Presiding Judge of the trial court has cross-examined this witness in which she has categorically reiterated her statement recorded in the examination in chief. There is no deviation, contradiction or exaggeration in it.
22. PW5 is S.I. Jagdish Singh Solanki, who was the investigating officer and has stated on oath that while being posted at police station Surajpur on 8.4.2003 he was Investigating Officer of Case Crime No. 30 of 2003 u/s 376, 323 I.P.C. registered on the complaint of Baleshwar on 8.4.2003 at the police station and on the same day he got the check FIR entered in the case diary. Entry of GD couple with the statement of constable clerk, who had registered this case at crime number, the statements of the complainant and victim Mona were recorded on the same day. On 9.4.2003 medico legal report as well as pathological reports of Mona, Anju and Jaymala were copied in the case diary. He inspected the spot on the pointing out of Baleshwar, prepared site plan in his handwriting and signature, which is paper no. 5A on the record. This has been proved and exhibited as exhibit Ka3. The x-ray report was copied in the case diary and the prosecutrix was reported for recording of her statement u/s 164 Cr.P.C. on 10.4.2003. Her statement was recorded by the Magistrate on 16.4.2003, which was entered in the case diary. The statement of Dr. Rita Bandhwa, Dr. Vikram Singh and Dr. R. K. Upadhyay were recorded in the case diary. The accused persons were apprehended by S.I. K.K. Dwivedi on 22.4.2003. Their statements were got recorded in the case diary. Subsequently statements of Mona, Anju and Jaymala were recorded in the case diary. After perusal of the entire record and case diary charge-sheet, with regard to Case Crime No. 30 of 2003 u/s 376, 323 and 308 I.P.C., was filed before the Magistrate on 25.4.2003, which is on record and is in the handwriting and signature of this witness. The same has been exhibited as exhibit Ka-4. In the cross-examination there is no contradiction or questioning upon those statements given in the examination in chief. Rather the same is the reiteration of it.
23. PW6, Dr. R. K. Upadhyay, Radiologist, has proved the x-ray reports of Km. Anju and Km. Mona, who were got x-rayed upon the reference made by the Medical Officer and brought by S.I. Jagdish Singh Solanki on 9.4.2003. These reports were paper nos. 8A/1 and 8A/2 and have been duly proved and exhibited as exhibit Ka-6 and Ka-7 respectively. Upon these x-ray reports and the ossification test of those two were proved. In cross-examination there is no contradiction.
24. PW7-Dr. Rita Bandhwa in her statement on oath in examination in chief has proved the medico legal examinations made by her on 8.4.2003 at Government Hospital abut 9.00 P.M. of Jaymala and its report to be under her handwriting and signature, which has been proved by her and exhibited as exhibit Ka-8. Medico legal report of Km. Anju is exhibited as exhibit Ka-9 and the medico legal report of Km. Mona is exhibited as exhibit Ka-10, which was paper no. 8A/5 on record. The injuries found on the external and internal examination over person of Mona and its supplementary report have been fully proved by this witness and there was a finding of presence of dead spermatozoa on the slide of vaginal smear of Mona with definite opinion of rape with her.
25. PW8 Yagdutt Sharma is the Investigating Officer of crime registered u/s 25 Arms Act in which the trial court has awarded acquittal and there is no appeal by the State.
26. PW9 is Dr. Vikram Singh, Pathologist, who has proved the pathological report of slide of vaginal smear, examined by him, and presence of dead spermatozoa and red blood cells in the vaginal smear, has been proved by this witness. There is no contradiction, rather there is full corroboration in his cross-examination.
27. PW10, constable clerk Ravikant, is a formal witness, who has proved the registration of this case at Crime No. 30 of 2003 u/s 376, 323 I.P.C. at P.S. Surajpur on 8.4.2003 under his handwriting and signature and the check FIR, paper no. 4A/1 to be the same one under his handwriting and signature. The letter for medical examination of Mona, prepared by him, has been exhibited as exhibit Ka-20. Investigation of this crime was deputed to S.I. Jagdish Singh Solanki at the time of its registration, at GD entry no. 32 on 8.4.2003 at 17.35 hours, has been formally proved by this witness and exhibited as exhibit Ka-21. Exhibit Ka-22 and Ka-23 have been proved by this witness in the cross-examination. In the statement recorded u/s 313 Cr.P.C. the registration of case crime number by this witness on the above time, date and place upon the report of the complainant has not been disputed.
28. PW11 is S.I. K.K. Dwivedi, who had apprehended both of the accused persons and from their personal search arms and ammunition were recovered. The same is not relevant in the present case.
29. In the statement recorded u/s 313 Cr.P.C. a bald reply “Galat Hai” has been given for each and every question put by the Trial Judge and the implication has been said to be the result of enmity but no enmity has been cogently proved nor taken in defence. Hence, Trial Court by proper and correct appreciation of facts and law concluded the trial with the conviction of the convicted appellant Ram Pravesh and after hearing him passed the order of sentence in it.
30. The child victim Mona of tender age of five years was subjected to rape by accused Ram Pravesh and she was assaulted by him, which has been instantly reported at police station by her father after his arrival at his home. The investigation proceeded, which resulted in filing of charge-sheet for above offence and this witness was examined and found that she was competent to understand the question put to her and was able to answer the same reasonably, hence, a certificate to this effect was issued by the learned Presiding Judge of the trial court and then she was examined on oath. In her unimpeachable testimony she has described the occurrence occurred with her. The commission of rape by accused Ram Pravesh and giving assault to her has been fully and reliably proved by this witness. The same is corroborated by the medical evidence, discussed as above, as well as formal evidences. The minor contradictions being pressed by learned Amicus Curiae for the convict-appellant are of no avail because in State of U.P. Vs. Krishna Master and others, 2010 Cr.L.J. 3889 (SC) the Court has propounded that a rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Though there is no pointable contradictions in her statement.
31. Court in Major Singh Vs. State of Punjab (2006) 10 SCC 499, Kunju alias Bal Chandra Vs. State of Tamil Nadu as well as in Lallu Manjhi Vs. State of Jharkhand, AIR 2003 SC 854 has laid down the principle that conviction can rest on the evidence of a solitary witness if it is clear, cogent and unimpeachable. In the trial in hand the testimony of Km. Mona, the victim, is fully trustworthy. It is clear, cogent and unimpeachable. The judgment of conviction and sentencing made therein is fully supported with facts and law applicable on record. This Jail Appeal merits its dismissal.
32. Dismissed accordingly.
33. Lower court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
34. Before parting, we find it appropriate to place on record our commendation to learned counsel, who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that she shall be paid counsel’s fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Mrs. Kanchan Chaudhary, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :-06.12.2018