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Sukhdev vs State Of U.P. on 9 February, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 62 Reserved

Case :- CRIMINAL APPEAL No. – 2370 of 2017

Appellant :- Sukhdev

Respondent :- State Of U.P.

Counsel for Appellant :- Saket Jaiswal,Anil Kumar,Kamta Prasad

Counsel for Respondent :- Govt.Advocate

Hon’ble Krishna Pratap Singh,J.

This Criminal Appeal has been filed against a judgement and order dated 01.11.2013 passed by the Additional District and Sessions Judge/Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act Hamirpur in Special Case No. 21 of 2005, arising out of case crime No. 157 of 2004, under section 376, 506(2) IPC and 3(1)(xii) of SC and ST Act, police station Chikasi, district Hamirpur. By the impugned order, the learned Additional District and Sessions Judge/Special Judge has convicted and sentenced the appellant Sukhdev 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 three months’ additional imprisonment. The appellant was further convicted and sentenced to two years rigorous imprisonment and a fine of Rs. 5,000/- under section 506 part II IPC and in default of payment of fine, he was further directed to under go one month’s additional imprisonment.

However, by the same order, the learned Additional Sessions Judge has acquitted the appellant under section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred to as the “SC and ST Act.)”

Learned Additional Sessions Judge has further directed that out of fine of Rs. 25,000/- (rupees twenty five thousand), Rs. 20,000/- (rupees twenty thousand thousand shall be paid to the victim as compensation.

In short compass, the facts of the case as unfolded by the prosecution are that on 09.11.2004 a written report was handed over by the informant Nripat Singh, son of Dhani Ram Chamar at the police station Chikasi (Ext. Ka-1) at 12.30 PM on 08.11.2004 to the effect that on 08.11.2004 at about 3.00 PM when her daughter (name withheld) was coming back to house after attending the call of nature, Sukhdev, son of Jhandu Lodhi came their and dragged her daughter to the Jwar field and committed rape on her forcibly. When she tried to raise alarm, Sukhdev pressed her neck and threatened her to kill in case she reports the matter to any one. On hearing the shriek of his daughter, Daya Ram and Jai Singh rushed to the spot. However, on seeing them, the accused Sukhdev fled away from the spot.

On the basis of the aforesaid information a case was registered at case crime No. 157 of 2004, under sections 376, 506(2) IPC and 3(1)(xii) of SC and ST Act Ext. Ka-2 by PW 3 Constable Muharrir Rameshwar Prasad.

After the registration of the case the law set into motion. As the case was under the SC and ST Act, the investigation of the case was taken up by PW -5 Ramesh Chandra Yadav, the then Circle Officer, who got the statements of the complainant and the victim recorded. On 10.11.2004, he visited the spot and prepared the cite plan on the pointing out of the victim. He also sent the panty of the victim to the Forensic Science Laboratory. After completing the investigation, he submitted the charge sheet, which he proved as Ext. Ka-7.

As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the court of Sessions vide order dated 31.3.2005 where the case was registered as Special Case No. 21 of 2005. Learned Additional Sessions Judge framed the charges against the appellant under section 376, 506 IPC and 3(1) Xii 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 five witnesses.

PW-1 is the victim of the case.

PW-2 is the first informant of the case and father of the victim.

PW-3 is Constable Muharrir, who prepared the Chik FIR on the basis of the written report submitted by the first informant.

PW-4 is Dr. Shobha Rani, who has medically examined the victim of the case.

PW-5, Shri Ramesh Chandra Yadav, the investigating officer of the case, who conducted the investigation and submitted the charge sheet against the accused-appellant.

PW-1, the victim of the case has deposed in her examination-in-chief that on the date of incident at about 3.00 PM when she was coming back to her house after attending the call of nature from the field of Jwar. After attending the call of nature, Sukhdev met her and dragged her to the Jwar field and committed rape on her. She further deposed that at the time of incident, her age was 16 years. She cried when accused was committing rape on her. Accused pressed her neck and threatened her to kill if she makes any hue and cry. On hearing her noise, Jai Sing and Daya Ram rushed to the spot. On their arrival, accused fled away from the spot.

She also deposed in her examination-in-chief that she narrated the story to her mother. Her father was not present at home. When her father came back home, she told him about the incident. On the next day of incident, she went to the police station along with her mother and father to lodge the report. The report was scribe by Jai Singh. The panty, which she was wearing at the time of incident was taken into possession by the police.

PW-2 is the father of the victim and first informant of the case. He deposed in his examination-in-chief that at the time of incident he was not present in the village. He had taken Badri Lohar on the bullock cart to Chikasi for medical treatment. He returned home at about 9.00 P.M. On his coming back, his daughter has narrated the story by weeping. He further deposed that as it was night, he could not go to the police station Chikasi to lodge the report. On the next day, he went to the police station along with his wife and daughter and lodged the first information report.

The evidence of PW-3 Constable Muharrir Rameshwar Prasad, who prepared the Chick FIR and made necessary GD entry and PW-5 Shri Ramesh Chandra Yadav, the then Circle Officer, who has conducted the investigation and submitted the charge sheet, has already been discussed above.

PW-4, Dr. Shobha Rani Gupta has deposed that on 09.11.2004, she was posted at the District Women Hospital, Rath as Medical Officer. On that date, she has medically examined the victim, who was brought by Constable Radhey Shyam of police station Chikasi. Height of the victim was 4″ ft 5-1/2 inch. Her teeth were 14/14. Her breast was developing. She was of average built. On internal examination, doctor noticed that there was no injury on vulva, there was slight bleeding from the middle of vestibule. For the presence of spermatozoa, two slides were prepared and were sent to the pathologist and for ascertaining her age, she was advised x-ray. As per the x-ray report the age of the victim was ascertained as 17 years by the Chief Medical Officer.

However, Dr. Shobha Rani has not given any definite opinion about rape.

After the closure of prosecution evidence the statement of the accused-Sukhdev 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 due to Pradhani Election at the behest of Jai Singh.

After hearing the learned counsel for the parties and scrutinizing the evidence on record, the learned Additional Sessions Judge/Special Judge (SC/ST Act), Hamirpur has convicted and sentenced the appellant as indicated in the first paragraph of the judgement.

Heard Shri Kamta Prasad, 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 in this case. Learned counsel also argued that learned Trial Court has not appreciated the evidence on record in correct perspective and has convicted the appellant 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 and the judgement and order require no interference.

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 his examination-in-chief has deposed that at the time of incident he was not present in the village. He had gone to Chikasi for medical treatment of one Badri Lohar and when he returned back to his house at about 9.00 P.M., he came to know about the incident. He further deposed that as it was night, he could not go to the police station Chikasi to lodge the report. On the next day, he went to the police station along with his wife and daughter and lodged the first information report. The victim in her examination-in-chief has also stated that she narrated the incident to her mother as her father was not at home.

So, in my opinion, the delay in lodging the FIR has very well been explained by the prosecution in the statements of the first informant as well as the victim. 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.

In State of Himachal Pradesh Vs. Gian Chand, AIR 2001, SC 2075, Hon’ble Apex Court held thus:

” Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.”

The next contention of the learned counsel for the appellant that the appellant has falsely been implicated in this case due to village party bandi and Pradhani election at the behest of Jai Singh, is only to be noted and rejected. Although the accused in his statement recorded under section 313 Cr.P.C. has stated that he has falsely been implicated in this case as he has supported one Manu in that election, but the accused has not examined any witness in defence. Moreover, no enmity of the appellant with the complainant has been alleged or shown by the learned counsel for the appellant. The accused has stated that he has been implicated at the behest of Jai Singh. To a suggestion by the defence, both victim and the first informant denied any enmity with the appellant. In Indian Society no father shall make such an allegation spoiling the future life of her minor and unmarried daughter.

In this case a minor girl of 17 years had been ravished by the accused-appellant by dragging her to the Jwar field, 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 his 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 this case, the victim was put to lengthy cross-examination, but nothing could be elicited from her mouth so as to make her evidence untrustworthy. I find that the evidence of the prosecutrix is consistent. The victim has consistently stated that when after attending the call of nature, she was coming back to her home, accused appellant met her. He dragged her to the field and committed rape on her against her wishes forcibly. Thereafter, she has narrated the manner in which he has committed the rape. In this case, not only the victim, but also the witnesses have fully supported the prosecution case. Further the case of the prosecution finds supports from the report of the Forensic Science Laboratory, Agra dated 03.10.2005 (Ext. Ka-9) which confirms the presence of human blood and spermatozoa on the panty of the victim, which she was wearing at the time of incident.

Hon’ble Supreme Court in State Of Himachal Pradesh vs Asha Ram, 2006 Cri.L.J. 139 has held as under:

“We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.”

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 opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed 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.”

In the case of State of Karnataka Vs. Krishnappa 2000 (2) SCALE 610, Hon’ble Supreme Court pointed out that rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity. The Court held thus:

“The measure of punishment in a case of rape cannot depend upon the social status of the victim of the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status. religion race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.”

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:

“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 view of the above discussion, I am of the view that the prosecution has fully established its case beyond reasonable doubt by the evidence of the prosecution witnesses. The impugned judgement and order of conviction and sentence dated 01.11.2013 passed by the learned Additional District and Sessions Judge/Special Judge SC/ST Act, Hamirpur in Special Case No. 21 of 2005, which has been sought to be assailed, calls for no interference.

However, considering the submissions of the learned counsel for the appellant that this is the first offence of the appellant, the appellant was a rustic villager having small children to support and that there is no one in the family of the appellant to earn livelihood, I think the ends of justice would be met if the sentence of the appellant is reduced from ten years to eight years.

Accordingly, the sentence of the appellant of ten years rigorous imprisonment under section 376 IPC is modified and substituted by eight years. However, sentence awarded under section 506 (2) IPC is maintained.

However, both the sentences shall run concurrently.

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, Hamirpur for compliance and compliance report be positively submitted to this court within eight weeks.

Order Date : 09.2.2018

Ishrat

 

 

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