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Shiv Muni Nai vs State on 14 March, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Case :- JAIL APPEAL No. – 1333 of 2011

Appellant :- Shiv Muni Nai

Respondent :- State

Counsel for Appellant :- From Jail,Abhishek Kr. Srivastavaac

Counsel for Respondent :- A.G.A

Hon’ble Arvind Kumar Mishra-I, J.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgement and order dated 11.11.2010 passed by Special Judge (SC/ST) Act, court no.3, Dewaria in Sessions Trial No. 43 of 2008 (State Vs. Shiv Muni Nai), arising out of Case Crime No.144 of 2008, Police Station- Kotwali, District- Deoria, whereby appellant- Shiv Muni Nai- has been convicted and sentenced to ten years R.I. coupled with fine Rs.2000/-, in case of default, he was to suffer additional imprisonment for six months- under Section 376 IPC. Likewise, the same sentence was awarded for offence under Sections 3(2)5 SC/ST Act. Both the sentences were directed to run concurrently.

Heard Sri Abhishek Kumar Srivastava, learned amicus curiae for the appellant- Shiv Muni Nai- and the learned AGA for the State and perused the record of this Jail Appeal.

Factual matrix, as discernible from record appears to be that a written report was lodged by informant- Moti Chand Harijan S/o Ram Pyare, r/o Sonughat, Police Station- Kotwali, district- Deoria regarding commission of rape committed by the accused on his daughter with allegations, inter alia, that accused took away his daughter Sabeena, aged 4 years, on 16.02.2008 at 5.30 P.M. When she was playing on ‘Kharanja’ adjacent to his house near her mother Bhagwani Devi. The accused came to his house and took the victim with him on his bicycle and went away towards western side of the village in some pulse field where molested her. After committing the crime, he fled away from the scene leaving behind the victim. She came out of the field when he was sighted by the villagers, whereupon, information was given to him, then he took his daughter to his home. The victim was seeped with blood. The incident was witnessed by villagers, namely, Upendra and Shailendra, besides being seen by others, while Shiv Muni Nai was fleeing away on bicycle. The written report is Exhibit Ka-1.

Entry of contents of written report was noted in the concerned check F.I.R. at 01.10 P.M. on 17.2.2008 at Case Crime No.144 of 2008, under Sections 376 IPC and 3(2)5 SC/ST Act, Police Station- Kotwali, District- Deoria, which is Ex.Ka.5. Relevant entries were made in the concerned G.D. at rapat no.23 at 13.10 hours on 17.02.2008 and a case was registered against accused, which is Exhibit Ka-6.

The investigation ensued, and the same was progressed by Jitendra Kumar Srivastava (P.W.8), who after recording the relevant entries in the concerned General Diary (Exhibit Ka-6) recorded statement of various witnesses and prepared the site map, Exhibit Ka-8 and also took note of statement of the victim. After completing the investigation, he filed the charge- sheet against the accused under Sections 376 IPC and 3(2)5 SC/ST Act, which is Exhibit Ka-9.

Record reflects that Dr. Bindu Yadav medically examined the victim at District Women Hospital, Deoria on 17.2.2018 at 4.25 P.M. Thereafter, she was referred for further treatment to B.R.D. Medical College, Gorakhpur. Medical examination report is Exhibit Ka-7.

On 20.2.2018 the victim was medically examined at District Hospital, Gorakhpur at 3.45 P.M., as the case was referred from District Hospital, Deoria. This report reflects that no marks of injury was seen. On separating labia minora, hymen torn, perineum torn. She was referred to BRD Medical College for necessary action. This report is Exhibit Ka-2.

Further, medical examination of the victim took place and supplementary report was prepared, which is Exhibit Ka-3, wherein, no definite opinion was expressed about the commission of rape. Age determination was done on the Radiological Report by the CMO, Gorakhpur and it was assessed about 4 years. This report is Exhibit Ka-4.

Thereafter, the case of the appellant was committed to the court of Sessions, who heard both the sides on point of charge, and after being satisfied with the prima facie case against the appellant, he charged him under section 376 I.P.C. and 3(2) 5 SC/ST Act and the charges were read over and explained to the accused, who abjured the charges and claimed to be tried, whereupon, the prosecution was asked to adduce its testimony. In turn, the prosecution produced 9 witnesses of fact, whose sketch is being narrated herein below.

Motichand is the P.W.1. He is the informant and the father of the victim.

Shailendra Kumar P.W.2 is the witness of fact, who turned hostile in his cross-examination, although, he has supported prosecution version in his examination-in-chief.

Upendra P.W.3 is also a witness of fact.

Dr. Neena Tripathi is P.W.4. She conducted medical examination of the victim on 20.2.20008 at 3.45 P.M. And referred her for further action to BRD Medical College.

Dr. Neela Sharma is P.W.5. She has also medically examined the victim and has given treatment to the victim.

Constable Saroj Kumar is P.W.6. He has noted relevant entry in the concerned Check FIR and the concerned G.D. and has proved Exhibit Ka-5 and Ka-6, respectively.

Dr. Bindu Yadav is P.W.7. She has medically examined the victim on 17.2.2008 at District Women Hospital, Deoria at 4.25 P.M.. She has proved the medical examination of victim as Exhibit Ka-7.

Dr. Ranjit Kumar Rai is P.W.8. He is the Pharmacist. He has also testified to the fact that he was present at the time when the medical examination of the victim was done by Dr. Bindu Yadav on 17.2.2008.

Jitendra Kumar Srivastava is P.W.9. He is the Investigating Officer of this case and he after completing the necessary formalities filed the charge-sheet, Exhibit Ka-9.

Trial court also got examined the victim as C.W.1.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he has submitted that he has been falsely implicated in this case on account of enmity and he is suffering from disease of ‘Polio’ due to this, he is paralytic since childhood.

No evidence, whatsoever, was led by the defence.

The court below after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction and sentenced under both the counts- under Section 376 IPC and 3(2)5 SC/ST Act- each for 10 years R.I. coupled with fine Rs.2000/- with default stipulation for six months Additional imprisonment.

Resultantly, this appeal.

It has been vehemently contended by learned amicus curiae on behalf of the appellant that the entire incident originates in darkness of disorder, nothing concrete has emerged against the appellant. The circumstance of committing rape has not been satisfactorily proved. The medical examination has been delayed. Lodging of the FIR is outcome of deliberation and FIR is highly delayed. Testimony of prosecution witnesses of fact is grossly contradictory. The trial court did not heed to aforesaid inconsistencies and erroneously recorded findings of conviction.

Learned AGA has supported the finding of conviction and sentence awarded.

Also considered the above rival submissions.

In the light of the submissions so made and in the light of the claim made by both the sides, the point that arises for adjudication of this appeal relates to fact, whether the prosecution has been able to prove its case beyond reasonable doubt against the accused?

While pursing the first information report it transpires that the report was lodged at 1.10 P.M. on 7.2.2008 by the informant Motichand P.W.1. The distance of the place of occurrence from the police station is stated to be 8 kms and as per testimony of Motichand P.W.1, he arrived at the police station in the morning of 17.2.2008, but the report was lodged at 1.10 P.M., it means that after arrival of the informant, the police took note of the situation and it made preliminary inquiry testing veracity of the allegations made in the FIR, and thereafter the police lodged the FIR. That way, the police occasioned slight delay in lodging the FIR, which delay is not of the delay occasioned by the informant, but by the police.

Looking to the entirety of the case, it cannot be said that there was any occasion for the informant to falsely implicate the accused, as no such particular enmity has been described to be working as acting force for false implication. However, in so far as testimony of Motichand P.W.1 is concerned, he has testified to the ambit that on the day of occurrence on 16.2.2008, it was around 5.30 P.M. his daughter- the victim- who was aged 4 years, was playing on Kharanja, when the accused arrived on the spot and took the victim on a bicycle towards western side of the village, thereafter the informant was told by the villagers- Upendra and Shailendra- and other about rape being committed by the appellant in the pulse field of the village, also fact that the appellant fled away from the scene leaving behind the victim in pool of blood, therefore, testimony of Motichand P.W.1 despite strenuous cross-examination stands the ordeal test and it does not erode credibility of the witness on that particular factual aspect and the claim of the prosecution that the accused took away the victim on 16.02.2008 at 5.30 P.M. while she was playing near her house on the Kharanja side of the road.

Next, when the testimony of Shailendra Kumar P.W.2 is scrutinized, it emerges out that he saw the appellant coming out from the pulse field. He was on way to his village around 5.30 P.M. on 16.2.2008. He saw the accused coming out of the pulse field and going towards Devrod. When he saw him he looked perplexed and annoyed and when he proceeded further he found Sabeena near the field, who was aged about 3-4 years she was in tears, seeped with blood and moving towards village- Sonughat. While this witness was about to inquire from her, her mother arrived on the spot and took her to the house. Later on he came to know that rape was committed by the informant. However, this witness has turned hostile. In his cross- examination, he has not supported the case of the prosecution, however, he has testified that had seen the victim going towards village in weeping condition when her mother arrived on the spot. Although, he has stated that he did not see the incident of rape being committed. Therefore, his testimony when read in wholesome manner unequivocally proves and establishes fact that he saw the accused and the victim near the pulse field of Baijnath- in village- Sonughat- on 16.2.2008 around 5.30 P.M. and this testimony when collated with the testimony of Motichand P.W.1 fortifies fact that the victim was taken away by the accused on bicycle at 5.30 P.M. from the road side ‘Kharanja’ on 16.2.2008. This factual situation is self revealing about the complicity of the accused in the very commission of the offence because he disappeared alongwith the victim initially while the victim was playing and then sighted near the place of occurrence- the pulse field of Baijnath- and the victim was seeped with blood, standing and crying.

Dr. Neela Rai Sharma has medically examined the victim at Gorakhpur on 20.2.2008 and she remained under her treatment from 23.2.2008 till her discharge on 4.3.2010. She was discharged on the request of the guardian of the victim. It is evident from the injury report that no marks of injury was seen, however, on separating labia minora, hymen and perineum was found torned. This fact corroborates the claim of the prosecution that the minor was raped and the doctor’s testimony has come-straight to the effect that this injury could have caused around 5.30 P.M. on 16.2.2008. Therefore, all the circumstances have been consistently proved and this leads to inescapable conclusion that the accused alone committed the crime and the trial court has taken into consideration all the relevant aspects of this case and has recorded just finding of conviction and passed just sentence.

Consequently, judgement and order of the trial court is hereby affirmed and appeal being devoid of merit and is hereby dismissed.

Record reflects that the accused was in custody on 18.2.2008 and since then he remained in custody in this case. It means sentence of 10 years awarded in this case stood suffered by him by now. But the amount of fine imposed under both the proved charges under Sections 376 and 3(2)5 SC/ST Act to the extent of Rs.2000/- under each count if not paid then the accused would have to suffer additional imprisonment for six months as directed by the trial court. It is expected that the concerned Jail Authorities shall calculated the sufferance of sentence properly.

Copy of this order be sent to the court concerned for information and necessary follow-up action.

It is expected that the court concerned shall also forward a copy of this order to the concerned Jail Superintendent for ensuring necessary compliance.

Dt.14.3.2018

Raj

 

 

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