HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 28.07.2018
Delivered on 24.08.2018
Court No. – 15
Case :- JAIL APPEAL No. – 1978 of 2008
Appellant :- Ram Singh @ Ramu
Respondent :- State
Counsel for Appellant :- From Jail,Mohit Singh,Seema Pandey A.C.
Counsel for Respondent :- A.G.A.
Hon’ble Dinesh Kumar Singh-I,J.
1. Heard Ms. Seema Pandey, Amicus Curiae, Sri Deepak Mishra, learned A.G.A. appearing for the State and perused the record.
2. This jail appeal has been preferred against the judgment and order dated 27.09.2007 passed by Additional Sessions Judge/Fast Track Court, Hapur, Ghaziabad in Session Trial No.386 of 2007 (State vs. Ram Singh @ Ramu) arising out of Case Crime No. 101 of 2006 under section 376 IPC, P.S. Bahadurgarh, District Ghaziabad whereby the accused-appellant has been held guilty and awarded punishment under section 376 IPC of ten years rigorous imprisonment and fine of Rs.4,000/- and in default of payment of fine, he has been directed to further undergo six months rigorous imprisonment.
3. In brief the facts of the case are that an FIR was lodged by Jaivir Singh, informant of the case on 13.8.2006 at 7.30 a.m. which was registered as Case Crime No.101 of 2006 stating therein that on 12.8.2006 his grand daughter Shakshi aged about six years, who was playing outside his house at about 8.00 p.m. disappeared all of a sudden. He and his entire family members made a search of his grand daughter throughout night and at about 5.00 A.M. in the morning, she was found in ‘Gher’ of Satish son of Mahavir in the house of his relative Ram Singh @ Ramu son of Mallu Singh (accused) and his grand daughter was rescued from the accused by Budh Singh son of Jashwant Singh, Om Prakash son of Partun Shamra and other villagers at the time when she was being raped by the accused Ram Singh @ Ramu, who was caught hocld of by them and further both the victim as well as the accused were brought to police station and the victim was in bad condition.
4. After registration of the case against the accused-appellant investigation was started by S.I. Ranveer Singh, PW 8 who visited the spot and prepared site plan (Exhibit Ka-4) of the place of occurrence. He also collected under garments of the accused Ram Singh which had on it stain of blood and semen and prepared its recovery memo which is Exhibit Ka-3. He also took in possession one frock, undergarment, of the victim which also had stain of blood and semen upon it, got its recovery memo prepared which is Exhibit Ka-2. Thereafter, the investigation was transferred to Sanjai Singh Bhadauria, PW-9 who, prepared recovery memo of torch in the light of which the witness had stated to have seen the accused and the victim which is Exhibit Ka-5 and after having gone through the statement of the victim recorded under section 164 Cr.P.C and entire evidence collected, he submitted charge-sheet under section 376 IPC against the accused which is Exhibit Ka-2.
5. The victim was medically examine by Dr. Archana Saxena, PW-10 on 13.8.2006 who, in external examination, did not find any pubic hair grown nor any sign of external injury. However, in her internal examination, the hymen was found in freshly torn condition in 6 ‘O’ clock position and small skin was found present around it and blood was oozing out after touching it, although she did not find any spermatozoa. She prepared injury memo Exhibit Ka-8 recording above facts and thereafter also prepared a supplementary report dated 28.8.2006 (Exhibit Ka-9) on the basis of pathological report in which she expressed that no definite opinion could be rendered with regard to rape having been committed upon the victim and that the injury which was received in hymen was possible to have been caused due to some blunt object. She also opined that if a man would insert penis, such kind of injury could have been caused to the victim.
6. The prosecution has examined the first informant Jaiveer Singh as PW1 who is grandfather of the victim; Budh Singh as PW2 of the same village who was involved in night long search of the victim as eye witness; Om Prakash as PW3 also resident of the same village as eye witness of the occurrence; Navratan Singh as PW4 who is scribe of the FIR (Exhibit Ka-I); Yudhvir Singh as PW5, a witness of recovery memo prepared with regard to taking clothes of the victim and accused in possession; Girraj Singh as PW6, second witness of the recovery memo (Exhibit Ka-2 and Exhibit Ka-3); Km. Shakshi victim herself as PW7, constable Jaivir Tyagi as PW11 who prepared the chick FIR no.49 of 2006 (Exhibit Ka-10) and also who made entry in G.D. at report no. 9 at 07-35 hrs. on 13.8.2006 which is Exhibit Ka-11.
7. The charge was framed against the accused under section 376 IPC on 24.4.2007 to which he has pleaded not guilty and claimed to be tried.
8. After conclusion of the prosecution evidence mentioned above, the statement of accused under section 313 Cr.P.C was recorded on 17.8.2007, in which he stated that the entire evidence which has been produced against him from the side of the prosecution was false and the statement made by the victim was also false which was given under the influence of her parents. He further stated that he was living in the house of his ”Phufa’ Satish because he did not have any son and he was just like son to him but the residents of village did not like him and hence he was falsely implicated in this case so that he runs away from the village.
9. The trial court after having evaluated the entire evidence on record, has come to the conclusion that it was accused-appellant who committed rape on the victim. Accordingly, it awarded him the aforementioned punishment.
10. Learned Amicus Curiae has assailed the impugned judgment on the ground that since no spermatozoa was found in the medical examination report of the victim and the doctor has opined that because of that reason no definite opinion could be expressed that rape was committed upon the victim, therefore the accused should be given the benefit of doubt and should be acquitted. The court below has ignored this extremely important aspect from taking into consideration and erroneously convicted him under the aforementioned section.
11. Per contra learned A.G.A. argued that the impugned judgment did not suffer from any infirmity and that the appeal deserves to be rejected.
12. I have heard the arguments of both the sides and have gone though the entire record.
13. According to FIR the occurrence took place on 13.8.2006 in the early morning because the victim had disappeared from outside the house of the first informant, grand father of the victim and throughout night he along with other villagers made search about the victim, she could be located in the house of Ram Singh @ Ramu accused, situated in the ”Gher’ of Mahavir Singh. FIR was promptly written on the same day i.e. on 13.8.2006 at about 7.35 A.M. without any loss of time.
14. PW 1 who is grandfather of the victim stated in examination-in-chief supporting the prosecution case that his grand daughter aged about 6 years was playing around 7.00 p.m. on 11.8.2006 outside the house of complainant and all of a sudden she vanished. Throughout night he made search for her and she could be recovered the next day in the morning at about 5.00 A.M. from ‘Gher’ of Satish with the aid of other residents of villager Budha Singh and Om Prakash. At that time, she was lying naked and was being raped by the accused. The accused was caught by them after being beaten and both victim and the accused were taken to police station. At that time, the victim’s condition was very bad. He had got report written dictating the same to Navratan and thereafter he had signed the same which is Exhibit Ka-1 and thereafter the victim was got medically examined by the police and her statement was also recorded before the Magistrate. In Cross-examination, he by mistake had uttered that the report was lodged in the night as long time had passed, so he had forgotten about it. Further he has stated that large number of villagers, Budh Singh and Om Prakash had come in the morning. He had seen the victim inside the room, the door of which was opening towards west which was about 8 ft. x 8 ft.. Ram Singh was caught at about 5.00 A.M. He did not make any effort to run away from the spot and was caught there. Thereafter, he stated that he was not allowed to come out from the room and about 1-2 fts. away from the door he was caught. When he was caught, the police did not reach there. He did not beat Ram Singh. However, people who had assembled there had beaten him. The victim is his real grand-daughter. After seeing the situation, he was extremely annoyed but before he would start beating the accused, other persons had come there who had snatched Ramu Singh away from him. No member of the house of Satish was present at that time nor any quarrel took place with Satish. Further, he stated that there was no enmity between him and Ram Singh. When he had gone there, Ram Singh was naked and was wearing clothes on the upper portion of the body, his pant was lying low. He could not see any stain. He had reached the police station at about 6-7 a.m. and report which is Exhibit Ka-1 was written at police station, which later on was signed by him. He has denied to have any displeasure in respect of accused staying in the house of the Satish nor did he want him to leave the village nor did he falsely implicate him for that reason.
15. The aforesaid statement seems to be in support of the FIR because it is clear that the accused was caught in the room where this occurrence took place, although a little bit exaggeration is noticeable in his deposition but it is very often seen that the witnesses who were closely related to the victim sometimes make over statement in enthusiasm and to ensure that the accused does not escape punishment. It is human weakness and therefore little bit exaggeration in his statement may be ignored. It is quite evident from the entire testimony of this witness that the victim was recovered from the room where the accused was found with her in compromising position when he was caught.
16. The other eye witness Budh Singh (PW 2) in his testimony has stated that he along with many other persons was making search of the victim throughout night and at about 5.00 AM, cry of the victim was heard coming from the ‘Gher’ of Satish, pursuant to which the light of torch was thrown in that direction, then it was found that relative of Satish namely Ram Singh (accused) was committing rape upon the victim lying over her and the pant of the accused as well as clothes of the victim had been taken off. Thereafter, all of them after beating accused had rescued the victim from his clutches. In cross-examination this witness has stated that no report of the victim going missing was lodged. At about 5.00 AM cry of victim was heard emanating from the house of Satish and when he reached there he saw the accused lying over the victim committing rape. When he reached there, the accused had pulled up his pant. Accused was, first of all, beaten up by him and thereafter all others started beating him. Satish had no son and Ramu (accused) was living in his house being his relative. When he reached the place of occurrence about 1 ½ hours was still left for the day to break, hence there was sufficient darkness. The victim was found in the house of Satish on a cot. The room in which she was found was facing towards west. In front of the room was varandah. No one else was found in his room. The accused did not flee from the spot after seeing him and was caught on the spot. The victim had gone missing since 8 PM on 12/8/2006. He had taken victim and the accused on a tractor to police station and reached there at about 6:30 AM which was hardly 4 KM from place of occurrence. The report had been registered in his presence. He has also denied the suggestion that he had not caught the accused on the spot or that he was deposing against him only because he was a friend of the Jaiveer and that he wanted accused to leave the village. The testimony of this witness also seems to be trustworthy except that he also seems to have exaggerated a little bit when he states that he had seen the accused raping the victim, however this much is deductible from his statement that the victim who was rescued from the company of the accused from the room, in the house of Satish which was occupied by the accused and the victim. Nothing of such kind could be elicited from his long drawn cross-examination which might discredit his testimony as a whole.
17. The next witness of fact is victim herself who was put few preliminary questions so as to ascertain by the Presiding Officer as to whether she was capable to give statement and after having been satisfied it was expressed that she could depose before court and thereafter she stated as PW 7 that she knew accused Ramu. He had taken her to the house of Satish and there he did dirty things. Her grandfather reached there, who brought him back and Ramu was caught. She had also identified accused in court but would not give reply of any other question. In cross-examination she deposed that Ramu had taken her away giving her allurement that he would give her money. She had bled but when she was asked as to what was the reason of bleeding, she could not reply. Further she stated that she had cried loudly, hearing which his grandfather came to know where she was and then he came there to collect him. At that time she was alone. She did not know the name of Ramu earlier, however her mother had told her his name. Ramu had not beaten him nor was she snubbed by him. When her grandfather reached she was lying in ‘Gher’, where Ramu had taken her. She kept silent when she was put question as to from where she bled and also stated that the name of Ramu was being taken by her as it was told to her by her grandfather and mother. Since this witness is a small child of about 6 years, it cannot be expected from her to give matured statement in respect of the occurrence of rape, however her deposition to the effect that she was taken away in ‘Gher’ of Satish by the accused where she was with Ramu and that she had bled is the most vital and very significant statement, from which it would be very easily gathered, coupled with the medical evidence of her hymen being found freshly torn and blood oozing out on touch from there, that she was subjected to rape by the accused. Further above-mentioned two other witnesses have clearly stated that she was recovered from the possession of the accused from the room in the ‘Gher’ of Satish where Ramu is alleged to have committed rape upon her. The Doctor has also opined that the kind of injury found in hymen was possible to be caused due to insertion of penis. From all this it could reasonably be gathered that the accused Ramu had committed rape upon her.
18. In Latesh alias Dadu Baburao Karlekar vs State of Maharastra along with connected Appeals, (2018) 3 Supreme Court Cases 66, the Apex court has laid down law that oral evidence takes precedence over medical evidence unless the latter completely refutes any possibility of such occurrence which finds support in Rakesh Sharma and others vs State of M.P., (2011) 9 SCC 195; Kathi Bharat Vajsur and another vs State of Gujarat, (2012) 5 SCC 724 and State of U.P. vs Hari Chand, (2009) 13 SCC 542. In the case at hand in view of above position of law the deposition made by the Doctor, who partially supports the prosecution version that possibility could not be ruled out of the victim having been raped, over this opinion of Doctor, I find that the testimony of the victim herself coupled with the other statements of two witnesses cited above are piece of evidence strong enough to conclude that the victim was raped by the accused and that conclusion drawn to that effect by the learned trial court has no error. This view further gets strengthened from the report of Forensic Science Lab, Exhibit Ka-12, which clearly contains the fact that on the undergarment of the victim as well as on her frock human blood was found and also on the undergarment of the victim as well as that of the accused the stain of human semen was found. The report of Forensic Science Lab being an expert report is admissible under Section 294 of the Criminal Procedure Code.
19. The defence set up by the accused appellant that he was staying with Satish, a close relative of the accused because Satish did not have any son and he was just like his son, because of which the residents of the village were not happy as they wanted him to go away from there and hence he had been falsely implicated by the complainant side, does not inspire confidence because it is a mere statement made under Section 313 Cr. P.C. which is not supported with any oral or documentary evidence. To me such a defence does not appeal at all that the complainant side would entertain a grudge against him to the extent that they would use their minor daughter, barely 6 years old, to falsely implicate the accused. The site plan also indicates that the house of the complainant is situated very close across the lane, to the house of accused. The learned amicus curiae could not show from evidence that there was any doubt about the place of occurrence. She was mainly hammering the point that no sperm was found in medical examination of the victim and that Doctor was also not categorically stating that the victim was raped, the accused ought to have been let off by being given benefit of doubt. I do not find any force in the said argument.
20. Next, she argued that there were various contradictions in the statements of witnesses of fact which belie the occurrence. In this regard it would be appropriate to rely upon the law laid down in Kameshwar Singh vs State of Bihar and others, (2018) 6 Supreme Court Cases 433, in which it has been laid down that hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is the duty of court, to scrutinise evidence carefully and, in terms of felicitous metaphors, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of prosecution case or material parts of evidence and reconstruct the story of its own out of rest. Effort should be made to find truth. It is the very object for which courts are created. To search it out, the court has to disperse suspicious clouds and dust out the smear of dust, as all such things clog the very truth. So long as chaff, cloud and dust remain, criminals are clothed with such protective layer to receive benefit of doubt. So, it is a solemn duty of courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of court, within permissible limits, to find out the truth. It means, on one hand, that no innocent man should be punished, but on the other hand, to see no person committing any crime should go scot free. If, in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to accused. Evidence is required to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of court to accept the evidence. Doctrines and Maxims, “Falsus in Uno, Falsus in Omnibus,” is treated as neither a sound rule of law and order nor a rule of practice in India.
21. In view of above position of law, in the light of evidence which has been brought on record from the side of prosecution, it is fairly proved beyond reasonable doubt that it was the accused Ram Singh alias Ramu, who committed rape upon the victim a girl of just 6 years, which offence would fall in the category of extremely heinous offence and therefore the accused appellant has been rightly held guilty under Section 376 IPC and has been punished with appropriate punishment of 10 years rigorous imprisonment along with fine of Rs. 4000 and in default of payment six-month additional rigorous imprisonment, which does not appear to be at all on the higher side. The appeal deserves to be dismissed and is accordingly dismissed.
22. The office is directed to transmit a copy of this judgment to the court below for information and necessary action.
23. However it may be pointed out that as per report received from Jail Superintendent, Central Jail, Agra dated 22/09/2017 the accused appellant appears to have been released after having served out 10 years punishment and after having deposited an amount of which 4000/- by way of fine on 23/05/2014. In view of this report, this judgment is only of academic interest and nothing else.
24. The learned Amicus Curiae, Ms. Seema Pandey, shall be paid an amount to Rs. 10,000/- for rendering admirable assistance to this court in deciding this jail appeal.