Allahabad High Court
Vinod vs State Of U.P. on 12 April, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED Case :- CRIMINAL APPEAL No. - 960 of 2014 1. Vinod son of Balakram Pasi, Resident of village Aggarkhurd, Police Station-Phool Behad, District-Kheri. ..................... Appellant. VERSUS. State of U.P. ..................... Respondent. Counsel for Appellant :- Ram Prakash Singh, Dharam Trivedi,Santosh Kumar Kanaujia Counsel for Respondent :- Govt. Advocate,Adarsh Kumar Maurya Hon'ble Anil Kumar Srivastava-II,J.
1. Heard Sri Santosh Kumar Kanaujiya, learned counsel for the appellant, Sri Pankaj Gupta holding brief of Sri Adarsh Kumar Maurya, learned counsel for the complainant as well as learned AGA.
2. Instant appeal has arisen against the judgment and order dated 28.6.2014 passed by Special Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No.27 of 2013 arising out of Case Crime No.35 of 2011 wherein the learned trial court has convicted and sentenced the accused appellant Vinod under Section 365 IPC and sentenced to seven years rigorous imprisonment and a fine of Rs.3000/- with default stipulation of two months' imprisonment, under Section 376(2)(g) IPC and sentenced to 10 years' rigorous imprisonment and a fine of Rs.5000/- with default stipulation of fine six months' simple imprisonment, under Section 506(2)IPC sentenced to three years imprisonment and fine of Rs.2000/- with default stipulation of fine one month's simple imprisonment. All the sentences to run concurrently.
3. According to the prosecution version, complainant -Mahendra Kumar Maurya lodged a first information report on 14.1.2011 at 6.10 PM stating that on the preceding night at about 12 O clock his two sisters aged about 14 years and 10 years went out of the house to meet call of the nature accused- Ram Lakhan and Vinod Kumar forcibly kidnapped them. After sometime, one sister namely, Mamta Devi came back and told that both the accused have taken the victim towards southern side of the village. A search was made by the complainant. At about 3.00 AM, Victim came back and told that both the accused have committed rape upon her in the sugarcane field towards southern side of the village.
4. A Case Crime No.35 of 2011, under Sections 365, 376 and 506 IPC was registered and investigation was handed over to Station Officer Jitendra Singh Sengar. During investigation, cloth of the victim were taken into the possession by the investigating officer. Victim was medically examined at District Hospital, Lakhimpur Kheri on 15.1.2011. Her X-ray was conducted and her radiological age was assessed as 19 years. In the medico legal examination, spermatozoa was found on the cloths. High School certificate of the victim was also taken into the possession wherein the date of birth was shown as 11.10.1996. Site plan was prepared. Statement of the witnesses were recorded. Thereafter, charge-sheet was submitted against the accused-Ram Khelawan and Vinod.
5. Since accused-Ram Khelawan was juvenile, his case was sent to the Juvenile Justice Board. Charge under Sections 365, 376(2)(g) and 506 IPC was framed against the accused-appellant who denied the charges and claimed to be tried.
6. Prosecution has produced P.W.1 Mahendra Kumar Maurya complainant, P.W. 2 Victim, P.W. 3 constable Rajesh Kumar Yadav Former witnesses, P.W. 4 Dr. Minakshi Chaudhari who has medico legal examined the victim, P.W. 5 Rizwan Ahmad who has proved the register S.R. showing the age of the victim. P.W. 6 Sanjay Kumar Mishra Principal of the School who has proved the high school certificate, P.W. 7 S.I. Jitendra Kumar Sengar, investigating officer.
7. In the statement under Section 313 Cr.P.C. accused has stated that he has falsely been implicated due to enmity.
8. After appreciating the evidence on record, learned trial court has recorded the finding of conviction against the accused. It was held that prosecution has successfully proved the charges against the accused. Accordingly, accused was convicted and sentenced.
9. Learned counsel for the appellant submits that the story of the prosecution is highly improbable. Two sisters went out of the house in mid night. They were kidnapped by two accused out of them, one is juvenile, thereafter, one sister came back who informs the complainant that the victim has been kidnapped by the accused and have been taken away towards southern side of field, but no efforts were made to search the victim towards the southern side of the village.
10. It is further submitted that no injuries were found on the body of the victim. Her radiological age was assured as 19 years wherein margin of two years is to be given which could go in favour of the accused. Victim was major. There are material contradictions in the statement of victim as well as complainant. No independent witness has been produced who could have supported the prosecution version of kidnapping. It is further submitted that the Mamta younger sister of the victim is also not produced. It is submitted that according to the prosecution she was also kidnapped. Non production of Mamta creates a serious doubt about the prosecution version. It is further submitted that both the accused are real brothers. Prosecution version is not believable that two real brothers will commit rape upon one girl.
11. Lastly, learned counsel for the appellant submits that the sentence imposed by the learned trial court may be reduced as it is not a case of gang rape because the other juvenile accused namely Ram Lakhan has not yet been held guilty by the juvenile justice Board.
12. Per contra, learned counsel for the complainant as well as learned AGA submits that the prosecution has successfully established the charges against the accused beyond reasonable doubt. It is a case of gang rape wherein accused-appellant- Vinod alongwith co-accused- Ram Lakhan had kidnapped the victim and committed rape upon her. It is further submitted that there is no requirement of law to produce an independent witness as the statement of victim itself is sufficient to hold the accused guilty. It is further submitted that even if the trial of co-accused-Ram Lakhan is not concluded by the Juvenile Justice Board, it does not mean that charge of gang rape is not being proved against the accused.
13. It is further submitted that the victim was a minor whose date of birth is recorded as 11.10.1996 while the incident took place on 14.1.2011. Victim was minor on the date of incident who has been raped by two persons. Accused have been rightly convicted and sentenced by the learned trial court.
14. Incident occurred in the night of 13/14.1.2011 wherein the first information report of the incident was lodged on 14.1.2011 at 6.10 P.M. It has been submitted that there is a considerable delay in lodging the FIR, which creates doubt about the prosecution version. As per the prosecution version, accused have forcibly kidnapped the victim as well as his sister Mamta Devi. After sometime Mamta Devi came back to her house and informed that the accused have kidnapped the victim. Thereafter, victim came back at about 3.00 AM and narrated the whole story to the complainant. P.W.1 Mahendra Kumar Maurya is the complainant who has stated that he lodged the first information report. It is stated that the report was written by uncle of the complainant namely, Mahendra Kumar Maurya. It is also admitted that before scribing the report, he had made consultation with his family members, thereafter, report was lodged. P.W. 2 victim also states that she came back to her house after ¾ an hours of her kidnapping and narrated the story. She was taken away to the police station, thereafter, she was medically examined by P.W.4 Dr. Minakshi Chaudhari, Medical Officer, District Hospital, Lakhimpur Kheri on 15.1.2011 at 1.30 PM. It is submitted by learned counsel for the accused that accused is living with his real uncle Ram Jiwan who is the Ex-Pradhan. There is an enmity between the present Pradhan-Ram Naresh and the Ex-Pradhan- Ram Jiwan due to which the report was falsely lodged. There is no direct enmity of the complainant or the victim with the accused. P.W.1 Mahendra Kumar Maurya has stated that alongwith his mother and uncle Mahendra went to the police Station, they reached police station at about 5.00 PM. Victim and Mamta Devi was also accompanying them. Written report was submitted at the police station. Incident relates to the month of January, when the victim came back to her house at about 3.00 AM. It was not humanly possible in the month of January to immediately reach to the police Station. Distance of the police Station from the place of incident is 10 Kilometers. It is a distance which could not be covered in the night.
15. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh vs. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under :-
"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging the FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."
16. In Thulia Kali vs. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under :-
"............... first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."
17. In Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."
18. Hon'ble the Apex court in the case of Nanhe Vs. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.
19. Prosecution has satisfactorily explained the delay in lodging the first information report, there is no inordinate delay due to which an adverse inference could be drawn against the prosecution version.
20. Prosecution has produced P.W.1 Mahendra Kumar Maurya who is the complainant and brother of the victim. P.W.2 is the victim. It is alleged by the prosecution that at the time of incident victim was minor. Her date of birth was 11.10.1996. P.W. 1 Mahendra Kumar Maurya has also stated that the age of P.W.2 victim at the time of incident was about 14 years. Although, radiological age has been assessed by P.W.4 Dr. Minakshi Chaudhary as 19 years but there is documentary evidence of the age. P.W.4 Rizwan Ahmad is the member of the Managing Committee of KAUKHSS Padariya Tula Kheri who has stated that in the original gazette of High School Examination 2013 at page no. 0180554 Roll No.1223911 result of the victim in the High School Examination is notified. High School Mark-sheet was issued by the Principal. On the basis of the gazette wherein date of birth of the victim is mentioned as 11.10.1996. P.W.6 Sanjay Kumar Mishra, Principal of Gayan Dhayini Shishu Mandir Jodi Bangala Naurangabad, Lakhimpur Kheri has stated that the victim studied in the year 2007-2008 in his school and passed Class V. Her date of birth was mentioned as 28.7.1997 in the S.R. register. On this contradiction, it is submitted that the actual age of the victim could not be proved by the prosecution. It is stated that at once place, date of birth is shown as 28.7.1997 while other in the place it is shown as 11.10.1996. While, the radiological age is about 19 years. At this stage, it is very relevant that the defence has not taken a plea of consent by the victim. So far as, age regarding consent is concerned, it does not bear an importance at the same time age of the victim has to be assessed.
21. The victim has passed High School Examination from KAUKHSS Padariya Tula Kheri. This mark-sheet was issued by Board of High School, Intermediate Education, Uttar Pradesh wherein photograph of the student is also annexed. This mark-sheet was proved by P.W.5 Rizwan Ahmad. No suggestion was given to him that this mark-sheet does not belong to the victim. While in the statement it is stated that the mark-sheet belongs to the victim wherein her father's, name is written as Moti Lal and her mother's name is written as Maya Devi. Identity of the student i.e. victim is not disputed. It is settled legal position that when there is documentary evidence of age in the High School Examination that will prevail over other evidence of age. Radiological age of the victim is only an assessment by the doctor made, on the basis of fusion of bones which can vary from case to case; it depends upon the body structure of the victim. Quality of food which she undertakes and other related circumstances in which time of fusion may vary. Hence, the radiological age is simply an opinion of the doctor which is rebuttable opinion when there is a mark-sheet showing the date of birth of the victim then definitely the date of birth mentioned in the mark-sheet would prevail upon the radiological age. Hence, I am of the view that the learned trial court has rightly upheld the age as mentioned in the High School Mark-sheet. Accordingly, victim was minor about 13 years and few months at the time of incident.
22. Now we have to examine and appreciate the evidence of victim. It is submitted that there is no independent witness who can support the prosecution version. Further, Mamta Devi is not produced, hence the statement of the victim cannot be relied upon.
23. Status of the victim has been put to a higher paedestal in comparison to other witnesses. Victim cannot be said to be an accomplice. She is only person, who can narrate the story and facts which has been faced by her. In a case of rape, it would be extremely difficult for the prosecution to produce an eye witness. Such type of offences are always committed at a place where no other person is present to see the incident. If there is anyone else, he is the co accused only and the victim. Law does not expect an eye witness account of an offence of rape. Even, sometimes victim is also so much terrified that she could not tell the whole story, either to her guardian or even to the police i.e. the reason that statements of victim of rape are expected to be recorded preferably by a lady Magistrate so that victim may have a congenial atmosphere to narrate the whole story. Even, the Hon'ble Apex Court has taken up the issue of evidentiary value of the prosecutrix in catena of judgments. Not at all but few of them can be quoted.
24. In State of Karnataka v. F.Nataraj, (2015) 16 SCC 752, it was held referring to Mohd. Ali v. State of U.P. , (2015) 7 SCC 272 (paragraph 30) wherein it was held as under:
"16. The learned counsel for the respondent further relied upon Mohd. Ali v. State of U.P. [Mohd. Ali v. State of U.P., (2015) 7 SCC 272 : (2015) 3 SCC (Cri) 82] , wherein this Court recently held as follows: (SCC p. 282, para 30) "30. True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony."
25. In Raja v. State of Karnataka, (2016) 10 SCC 506, it was held in paragraph 34 as under:
"34. This Court in Raju [Raju v. State of M.P., (2008) 15 SCC 133 : (2009) 3 SCC (Cri) 751] , while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114-A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113-A and 113-B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."
26. In Bhupinder Sharma v. State of H.P., (2003) 8 SCC 551, it was held in paragraph 12 as under :
"12. To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. (See State of Maharashtra v. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550 : 1990 SCC (Cri) 210 : AIR 1990 SC 658] .) 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? The plea about lack of corroboration has no substance."
27. Further, in the case of Mohd. Ali. Alias Guddu (supra) it was held in para 30 as under:-
"30. True it is, the grammar of law permits that the testimony of a presecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony.........."
28. Now in the backdrop of the aforesaid legal propositions, we have to examine the statement of P.W.2 victim.
29. It is submitted that the story is highly improbable as at mid night two sisters went out of their house to meet the call of nature. Accused persons, who are real brothers and are living in the house which is few houses away from the house of victim, forcibly kidnapped the victim. Mamta Devi younger sister of the victim came back to the house and inform the complainant and other family members about the incident. Incident took place in the month of January when the winter season is at the peak P.W.1 Mahendra Kumar Maurya has stated that on getting the information, he tried to search her sister victim but could not trace her, thereafter, victim came back to her house at 3.00 AM. P.W. 2 victim has stated that she was forcibly kidnapped. The accused pressed her mouth and she was taken away towards southern side of the village in a sugarcane field wherein she was raped twice by both the accused. She was put on the field but no injuries were caused. It is submitted that the story is an improbable as both accused are real brothers. Further no injuries was found on the body of the victim by P.W. 4 Dr. Minakshi Chaudhary.
30. I do not find any force in the argument, even if no injuries was found on the body of the victim, it cannot be said that she was not physically exploited by the accused. P.W.2 victim has stated that there was dew in the field of sugarcane leaves. She was put in the field from her back-side but she did not receive any injuries on her back and when victim herself has stated that she did not receive any injury in the incident. Then, there is no reason to disbelieve her version. Accordingly, Dr. Minakshi Chaudhary has not found the injuries on her body. It is also relevant at this stage, that the incident took place in the field wherein there are leaves of sugarcane. Victim was physically exploited in the field. Hence, she did not receive any injury on her body.
31. Mamta Devi has not been produced as a witness. It is further submitted that some contradictions in the statement of victim recorded under Section 164 Cr.P.C. as well as the statement recorded before the learned trial court. At the very outset, I found that the statement of the victim recorded under Section 164 Cr.P.C. was not put to the witness during the cross examination as required under Section 145 Indian Evidence Act.
32. Section 145 in The Indian Evidence Act, 1872:
145. Cross-examination as to previous statements in writing.-- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
33. If the defence wants to take any benefit out of the contradictions then according to the Section 145 of the Indian Evidence Act attention of the witness should have been drawn towards that portion as required under Section 145 of the Indian Evidence Act.
34. Although, there is no contradiction in the statement recorded under Section 164 Cr.P.C. and the statement of the victim recorded by the learned trial court. Further attention of the witness was not drawn towards any statement which was given by the victim under Section 164 Cr.P.C. Hence, the defence is not entitled for any benefit out of it.
35. Quality not the quantity of evidence is essence in criminal justice system. Statement of the victim is a prime importance. If statement of victim wholly reliable then no corroboration is required. Non production of Mamta Devi does not affect the prosecution version in any manner.
36. On the basis of the discussion made, I am of the view that the learned trial court has rightly appreciated the evidence and held the accused guilty for charges leveled against him.
37. Learned counsel for the appellant submits that since the trial of co-accused is pending before the Juvenile Justice Board and hence the accused appellant cannot be held guilty under Section 376 (2)(g) IPC. It is further submitted that the sentence was imposed by the learned trial court may be reduced. At this stage, firstly, when the accused-appellant has been held guilty for an offence punishable under Section 376(2)(g) IPC then the minimum sentence as prescribed under law is to be imposed upon him. Minimum sentence prescribed is not less than 10 years explanation of Section 376 (2)(g) IPC provides that when the woman is raped by one or more in a group of persons acting in furtherance of their common intention, each person shall be deemed to have committed gang rape within the meaning of subsection of Section 376 (2)(g) IPC deals with the gang rape.
38. Theory of sentencing has been explained by the Apex Court in the following decisions:
39. In Rajbala v. State of Haryana (2016) 1 SCC 463 Hon'ble the Apex Court has issued certain guidelines for the courts while sentencing an accused. It was held that :-
"16. A court while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective."
40. Further in Abdul Waheed v. State of U.P. (2016) 1 SCC 583 it was held by the Apex Court that :-
"Undue sympathy would do more harm to the criminal justice system undermining the public confidene in the efficacy of the system. It is therefore the duty of every court to award proper sentence having regard to the manner in which the offence was committed."
41. In Mofil Khan and another v. State of Jharkhand (2015) 1 SCC 67, three judges bench of Hon'ble Apex court has held that :-
"60. In the context of these turbulent social times, we cannot remain oblivious to the substantial suffering of the victims. It stands as a fact that criminal justice reform and civil rights movement in India has historically only paid considerably attention to the rights of the accused and neglected to address to the same extent the impact of crime on the victims. It is not only the victims of crime only that require soothing balm, but also the incidental victims like the family, the co-sufferers and to a relatively large extent the society too. The judiciary has a paramount duty to safeguard the rights of the victims as diligently as those of the perpetrators.
61. In Mahesh v. State of M.P. (1987) 3 SCC 80, this Court has deprecated the lenient approach in imposition of the appropriate punishment and observed that it would be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with clear evidence and diabolic acts. This Court held that to award the lesser punishment would be to render the justice system of this country suspect due to which the common man would lose faith in courts. This Court approved the harshest punishment in such cases as here adopting the approach that the accused understands and the society appreciates the language of deterrence more than the reformative jargon.
62. In Sevaka Perumal v. State of T.N. (1991) 3 SCC 471 ,this Court stated that undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law, Society could not long endure under such serious threats and therefore, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc."
42. Even though the trial of accused is pending before the Juvenile Justice Board for such a long time i.e. about six years and the learned trial court has held the co-accused guilty of gang rape. Then, it cannot be said that since the matter of co-accused is pending before the Juvenile Justice Board. Accused-appellant cannot be held guilty for gang rape. Learned trial court has rightly convicted and sentenced the accused-appellant, appeal has no force.
43. Accordingly, appeal is dismissed. Judgment and order dated 28.6.2014 passed by learned trial court is confirmed. Appellant is in jail. He shall serve out the sentence as imposed by the learned trial court and confirmed by this Court.
44. Office is hereby directed to certify the judgment to the learned trial court for compliance. Record of the trial court also be sent forthwith.
Order Date :-12.4.2017 (Justice Anil Kumar Srivastava-II.) Subodh/-