HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 60 Reserved

Case :- JAIL APPEAL No. – 5772 of 2007

Appellant :- Shyam Bihari

Respondent :- State

Counsel for Appellant :- From Jail,Mohit Singh Ac

Counsel for Respondent :- A.G.A.

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Hon’ble Ravindra Nath Kakkar,J.

This jail appeal has been preferred against the judgment and order dated 18.01.2007 passed by learned Additional District Sessions Judge/Fast Track Court, Court No.1, District Gorakhpur in Session Trial No.266 of 2005 (State Vs. Shyam Bihari), in Case Crime No.108 of 2001, under Sections 376 I.P.C., Police Station Chauri Chaura, District Gorakhpur, by which the appellant was convicted and sentenced to 14 years R.I. under Section 376 I.P.C. with a fine of Rs.5000/- and in default of payment of fine to undergo one year additional imprisonment. Out of the amount of fine, compensation of Rs.4000/- was directed to be given to the victim.

Prosecution story, in brief, is that on 11.05.2001 at about 6.00 p.m. evening accused Shyam Bihari, who is a rickshaw puller and used to visit at tea shop of the complainant, reached there and took tea and pakaudi from the said shop. Further at this point of time complainant, his wife an their children Pooja and Shrawan were present at the shop. Since the accused was known to the complainant’s family, he took her girl child Pooja, who was aged about 4 years, on which no objection was made from the side of complainant, but later on when the girl did not return for an hour they alongwith witnesses of the locality made search of her. At about 3.00 a.m. in the night they heard the noises of her daughter from the field of Maize situated in east side of his shop. He along with his brother Rama Shankar and wife Vimlawati and other villagers reached to the spot and saw the accused Shyam Bihari escaping from the spot. The accused was chased but could not catch hold of. Blood was oozing out from the private part of the girl child. Thereafter a written report was prepared, on the basis of which FIR was got registered in the police station. Medical examination was conducted in district hospital. On seeing the serious condition, victim was referred to medical college where she was admitted for 20 days.

It also transpires from the record that after commission of rape on the body of prosecutrix, the accused Shyam Bihari left the girl child in the field and escaped from the spot. The medical examination of the girl child was conducted on 12.05.2001 by lady doctor Anjula Gupta. Medical report Ex.Ka-2 is available on record. On internal examination abrasion was found on the cheek and neck and blood was oozing out from the vagina and vagina was torn to the rectum of the prosecutrix. It also transpires from the record that according to supplementary report, which is Ex.Ka-5, the age of the girl was found to be 5 years and the injuries on the private part were opined to be caused by blunt object. Investigating Officer conducted the investigation and filed charge sheet under Sections 376, 120-B I.P.C. Charge under Section 376 I.P.C. was framed against the accused appellant which was denied by the accused and claimed trial.

In support of its case prosecution produced Rama Shankar – P.W.1, Ram Bhajan Chaurasia -P.W.2, Vimlawati- P.W.3, Km. Pooja – P.W.4, Dr. Anjula Gupta – P.W.5, Ramanand – P.W.6, Investigating Officer Raj Kumar Chaudhary – P.W.7, Constable Alam Khan- P.W.8 and Dr. R.A.L. Gupta – P.W.9.

Ram Bhajan – P.W.2 has proved written report Ex.Ka-1, Dr. Anjula Gupta – P.W.5 proved the medical report Ex.Ka-2. Hand identification of the prosecutrix is Ex.Ka-3, Leg identification is Ex.Ka-4, supplementary report is Ex.Ka-5. Investigating Officer Raj Kumar Chaudhary -P.W.7 proved the site plan Ex.Ka-6, charge sheet Ex.Ka-7, copy of G.D. Ex.Ka-8 and chik FIR Ex.Ka-9. Dr. R.A.L. Gupta – P.W.9 proved the x-ray report Ex.Ka-10 and x-ray plate Ex.1. After close of the prosecution evidence, statement of the prosecutrix was recorded under Section 313 Cr.P.C.

Smt. Rashmi Srivastava, learned amicus curiae appearing for the appellant, made submissions that there is no direct evidence against the accused appellant for the commission of rape. The prosecutrix herself has not been examined by the prosecution and there is contradiction in the statements of the witnesses and the witnesses belong to the same family and some of the named witnesses of the charge sheet have not been produced and further there is delay in lodging the FIR. It is lastly submitted that accused has been falsely implicated in this case due to enmity and in defence copy of the statements of witnesses Ram Bhajan, Vimla Devi and Ramanand were produced.

Per contra, learned A.G.A. submitted that the prosecution in support has adduced evidence P.W.1 to P.W.9 (in total) alongwith police papers, medical report and the material exhibits which were produced before the trial court. The trial court after appreciating the entire oral, documentary and medical evidence available on record and keeping all the facts and circumstances of the case has rightly convicted the appellant. The impugned judgment and conviction order is well reasoned and based on established legal proposition and materials available on record, so it requires no interference as it is a rape case with a girl child aged about five years. Accordingly, the appeal deserves to be dismissed.

Before proceeding to examine the legality and correctness of the impugned judgment, I would like to refer established legal propositions on the subject. In the case of State of U.P. Vs. M.K. Antony, AIR 1985 SC 48, Hon’ble Apex Court laid down certain guidelines with regard to appreciation of evidence which required to be followed by the court. In such cases the court observed that “While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.”

The Apex Court further observed that “Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer.”

In the case of Yaseen others Vs. State of U.P., 2016 (1) ALJ Page 21, this Court held that “FIR is not a substantive piece of evidence but, it is an important piece of evidence upon which the entire edifice of the prosecution stands. A prompt FIR rules out all the elements of concoction, colouration and exaggeration. No specific format is provided but, if the FIR discloses the time, date, place and manner of occurrence in the name of accused persons and the witnesses, if any, it certainly facilitates the investigating agency in the process of investigation.”

In Guddu @ Raghvendra, Arjun Singh Vs. State of U.P., 2016 Criminal Law Journal 1314, this Court held that “The offences relating to the sexual assault are taken to be very heinous offence. These offences have a great impact on the social status, prestige of the family of the victim as well as it has impact on the dignity, reputation and prestige of the victim. The reputation, psychology image of the victim is always at jeopardy in the event of victimization of sexual assault in her known circle. After such incident normally a mature decision is taken by the family members about lodging of the FIR. Sometimes because of the social prestige and social constraint, such offence even go unreported to the police. It will neither have adverse impact on the authenticity of the FIR nor would be fatal for prosecution.”

On the unveil of the touchstone of the above legal propositions and the materials available on record, the fact of the case as alleged in the FIR with clinching evidence of the fact witnesses, namely, P.W.1, P.W.2, P.W.3 and P.W.6 establishes the charges levelled against the accused appellant. There is consistency in the fact evidence on the point that father of the victim was on tea shop and on the date of occurrence, i.e. 11.05.2001 accused Shyam Bihari visited his shop and at about 6 a.m. when complainant, his wife and their children were present on the spot, the accused took tea with pakaodi and after that took the victim along with him and went away. When the victim did not come back for an hour a search was made. In the night at about 3 a.m. on hearing the cries of the victim, the complainant along with other witnesses reached on the spot which was a field of maize adjacent to the tea shop. They saw accused Shyam Bihari with the minor girl child and was fleeing from the spot after leaving the girl on field. It further corroborates the presence, involvement and the commission of crime of accused appellant as the complainant and the witnesses saw the blood oozing out from the private part of the victim and it was further supported by the medical examination in which the doctor found that the vagina was torn up to the rectum. There were physical injuries on the face, cheek and neck. So far as the contention raised by the learned amicus curiae that prosecutrix was not produced before the trial court, this point has no substance as learned trial court specifically and categorically stated that prosecutrix was present before the trial court but due to her tender age and not able to understand could not be produced by the prosecution and the demeanor has been categorically recorded by the trial court. I am of the view that this is not fatal to the prosecution.

It is relevant to mention that fact witnesses P.W.2 and P.W.3, being father and mother of the victim, and P.W.1 and P.W.6 in which P.W.1 was related with the victim and P.W.6 is of the same village have been cross-examined at length but nothing adverse has been shown in the statement to disbelieve and discredit their testimony. Further to add that P.W.2 and P.W.3, being father and mother of the victim, come under the category of natural witnesses. The parents would never falsely implicate the accused at the risk of dignity to its honour of the victim girl child. The other visible factors like injures on the face, cheek and neck are itself indicative of fact of sexual assault at the time of commission of crime. It is relevant to mention that in this case P.W.2 and P.W.3 are father and mother of the victim and P.W.1 and P.W.6 are the resident of the same village. These witnesses have categorically stated in their statement before the court that on the relevant date, i.e. 11.05.2001 at about 6.00 a.m. accused Shyam Bihari was seen who took the prosecutrix from the shop and the victim did not return thereafter. It is only in the night of 11/12.05.2001 at about 3.00 a.m. on hearing the noises of the prosecutrix she was recovered from the field of Maize in injured position and the accused was also seen at that time running away from the spot. So there is a last seen evidence against the accused appellant and the chain of evidence is cogently established and proved by tendering evidence. So I do not find any perversity or infirmity in the finding of the trial court and the conviction has been recorded on the basis of circumstantial evidence especially that of a last seen evidence.

In this way I am of the view that the court below has recorded the finding of conviction after appreciating the evidence available on record and also considering the legal proposition as stated in the impugned judgment and there appears to be no justification to interfere with the finding of conviction recorded by the trial court.

Learned counsel for both the parties has drawn attention of the court to the report submitted by the Chief Judicial Magistrate alongwith report of the concerned Jail Superintendent, Varanasi to the effect that accused appellant Shyam Bihari was convicted on 18.1.2007 for imprisonment of 14 years R.I. with a fine of Rs.5,000/- as fine and in default of payment of fine to undergo one year additional imprisonment and after serving the entire sentence and depositing the fine amount of Rs.5,000/- the accused has been released from jail on 02.04.2016. This fact is admitted by the learned A.G.A.

For the aforesaid reasons, the findings of conviction and order of sentence including the compensation order recorded by the trial court against the accused appellant for the offence under section 376 I.P.C. is hereby confirmed and maintained. The appeal is accordingly dismissed. The appellant need not surrender before the court below. It is, however, made it clear that out of realized fine Rs.4000/- be given as compensation to victim/prosecutrix. The court below is directed to comply with this order.

Let a certified copy of the judgment along with original record be transmitted to the court concerned/jail authorities for compliance, if any.

I appreciate the assistance of Smt. Rashmi Srivastava, learned amicus curiae, who has appeared and argued on behalf of appellant. Registry is directed to pay fees to Smt. Rashmi Srivastava, amicus curiae, as per rules at the earliest.

Order Date :- 30.05.2018

Anand/-