Allahabad High Court
Netram Baghel vs State Of U.P. on 10 February, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved Court No. - 27 Case :- CRIMINAL APPEAL No. - 1159 of 2015 Appellant :- Netram Baghel Respondent :- State Of U.P. Counsel for Appellant :- R.K. Tripathi,K.D. Mishra,Rahul Kumar Tripathi Counsel for Respondent :- Govt.Advocate Courm: Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in the appeal is to the Judgment and order passed by Atul Srivastava, learned Additional Sessions Judge, Court No. 8, Mathura on 6.2.2015 in Special S.T. No. 13 of 2014, State Vs. Netram Baghel arising out of Case Crime No.243 of 2013 under Sections 345A, 376, 504, 506 I.P.C. and Section 4 POCSO Act, Police Station Shergarh District Mathura whereby the accused Netram was found guilty under Sections 354A, 376, 504 & 506 and Section 4 Protection of Children from Sexual Offences Act and was sentenced to one year's rigorous imprisonment and fine of Rs.1,000/- under Section 354A; seven years rigorous imprisonment and fine of Rs.5,000/-under Section 376 I.P.C.; six months rigorous imprisonment and fine of Rs.1000/- under Section 504 I.P.C.; and one year's rigorous imprisonment and fine of Rs.2,000/- under Section 506 I.P.C. Further the accused was found guilty and sentenced to seven years rigorous imprisonment and fine of Rs.5000/- under Section 4 POCSO Act with default stipulation.
2. Filtering out unnecessary details, the prosecution case is that a report was lodged by one Parsadi stating that on 24.11.2013 at 6 p.m. his granddaughter aged ten years had gone to the municipality tap to fill water. The accused Netram was standing there. He took the victim to his room on the pretext of giving her money, dropped her on the cot and started biting her cheeks. He also fondled her beast and took off her 'nekar' (knickerbockers) of the victim. When the victim screamed, Rajan, son of the informant, reached the spot at which Netram fled away from the room abusing everyone.
3. Investigation was entrusted to the Investigating Officer S.I. Shambhu Dayal Sharma P.W. 5. On 29.11.2013 he copied the report in the case diary. On 3.12.2013 the statement of the victim was recorded and she was sent for medical and ossification test. The spot was inspected at the instance of the victim. The site plan was prepared and proved as Ext.Ka-5. The report regarding the age was obtained. The age certificate was proved as Ext.Ka-6. On 4.12.2013 the medical report of the victim was obtained which was copied in the case diary. The statement of the victim was got recorded under Section 164 Cr.P.C. The supplementary pathological report of the victim was obtained and sections 376 I.P.C. and Section 4 POCSO Act was added in the matter. On 16.12.2013 the statement of Koravi Gagan was recorded. After that, investigation was transferred to S.O. Santosh Kumar (P.W.6), who further carried on the investigation. On 13.3.2014 the statement of the accused was recorded in jail. He lastly submitted charge sheet and proved it as Ext.Ka-7. The victim was medically examined by P.W.4 Vineet Singh, who proved the medical report Ext.Ka-3. The age of the victim was found to be below 15 years. The supplementary report was proved as Ext.Ka-4.
4. The prosecution examined as many as six witnesses. P.W. 1 is the victim who proved her statement under Section 164 Cr.p.C. as Ext. Ka-1. P.W. 2 is Parsadi, the grandfather of the victim, who has proved the written report as Ext.Ka-2. P.W.3 is Rajan, the father of the victim. The statements of witnesses P.W.4, P.W.5, P.W.6 have been discussed by me.
5. After close of the prosecution evidence, the statement of the accused was recorded under Section 313 I.P.C. in which he denied the occurrence. However, no evidence was produced in defence.
6. The learned lower court, after hearing counsel for the parties and perusing the record, found the accused guilty and sentenced him as mentioned in paragraph 1 of the Judgment. Feeling aggrieved the accused has come up in appeal.
7. I have heard learned counsel for the parties and perused the trial court record.
8. Learned counsel for the appellant has submitted that there is no evidence to prove the guilt against the accused and the Judgment of the trial court is based on conjectures and surmises. Hence, the appeal is liable to be allowed.
9. On the other hand, learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and the appeal is liable to be dismissed.
10. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
11. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her persons even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & others Vs. State of Maharashtra, (1999) 1 SCC 220.
12. Counsel for the appellant has submitted that there is inordinate delay in lodging the F.I.R. Inasmuch as the occurrence is said to have taken place on 24.11.2013, report was lodged on 29.11.2013 on 16.14 hours, the distance of the police station from place of occurrence being nine kilometers. Thus the delay of five days in lodging the F.I.R. remains unexplained.
13. The F.I.R. is silent about the delay. Perusal of the statement of the informant (P.W.2) states that the victim narrated the incident to him, who further got it scribed by Jagdish. He has admitted that there is no date on the written report. He did not narrate this incident in village because of fear as the accused had threatened to kill him. This particular case relates to rape with a very young girl. Generally, in cases of rape, the delay in lodging the F.I.R. is really of no consequence if the reason is explained since reporting the matter to the police would involve shame and prestige of the female. In this case, the victim was a very young girl and I do not think that the family members of the girl would first rush to the police station to lodge the report as admittedly they are uneducated and rustic villagers. Thus, in the present case, the delay in lodging the F.I.R. late is explained which is not fatal to the prosecution. In State of Rajasthan Vs. N.K. Accused decided on 30.3.2000, the Hon'ble Apex Court held has laid down:-
"We may however state that a mere delay in lodging the F.I.R. cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution. In State of Rajasthan Vs. Narayan AIR 1992 SC 2004 this Court observed True it is that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police. In State of Punjab Vs. Gurmit Singh & others (supra), this Court has held the Courts cannot overlook the fact that in sexual offences delay in the lodging of the F.I.R. can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complaint 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. So are the observations made by this Court in Karenel Singh Vs. State of M.P. (1995) 5 SCC 518 repelling the defence contention based on delay in lodging the FIR. In the present case, in our opinion, the delay in lodging the F.I.R. has been satisfactorily explained."
14. As far as age of the victim is concerned, according to the F.I.R., the age of the victim has been mentioned to be ten years. As per Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, the age of the victim has to be determined as per the procedure laid down under Rule 12 according to which in the absence of other evidence the medical evidence would be admissible. In the present case, there is no academic evidence on record. There is only the ossification report of the victim (Ext.Ka-4) according to which, as per radiological findings, the victim appeared to be below 16 years. The elbow epiphysis for head of radius and medial epicondyl was not fused. The epiphysis of wrist and knee was also not fused, hence, the conclusion was that the victim was below 16 years.
15. The counsel for the appellant submitted that a margin of two years can be taken on both sides and the margin beneficial to the accused must be taken in this case.
16. This is a case where the epiphysis was not fused, hence, the margins of two years cannot be taken in this case. Any how by no stretch of imagination the victim can be more than 16 years of age but the possibility of the victim being below 14 years of age also cannot be ruled out. The Hon'ble Apex Court in Criminal Appeal No. 288 of 2001, State of Karnataka Vs. Bantara Sudhakara @ Sudha and another decided on 18.7.2008 has held that it would not always be safe to conclude that two years age has to be added to the upper age limit.
17. Victim (P.W.1) has stated that Netram took her from near the tap to his room. He bit on her cheek, fondled her breast and derobed her and put his finger into her vagina. When she screamed, her father came on which Netram pushed her. In cross-examination, this witness has categorically stated that she is illiterate. Nobody else was present in the room of Netram. She has admitted that there was dispute between Netram and her grandfather.
18. I have carefully examined the testimony of this witness. The statement of the prosecutrix, in my view, quite naturally inspires confidence and merits acceptance. In the traditional non-permissive bounds of society of India, no girl or woman of self-respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future prospect of getting married with a suitable match. Not only she would be sacrificing her future prospect of getting married and having family life but would also invite the wrath of being ostracised and outcaste from the society she belongs to and also from her family circle.
19. P.W.3 is the father of the victim, who is said to have reached spot on hearing shrieks of his daughter. The conscience of the Court is shaken by the way in which this witness was cross-examined and what the trial court was doing when the witness was being cross-examined adding injury to insult the father of a young girl who was raped, who was being asked the size of her daughter's breast. How humiliating it must have been to ask a father whether he had seen marks of injury and whether the villagers had seen marks of injury on the breast of such a young girl. P.W.3 Rajan, father of the victim has stated that he was told about the occurrence immediately after the occurrence. Rajan is P.W. 3 whose name appears in the First Information Report. He has supported the version of prosecution case upto this extent that on hue and cry, when he reached the spot he saw his daughter only in panty. His daughter was crying who narrated the whole story.
20. Under Section 6 of the Evidence Act, it is proved that facts which though not in issue, are so connected with the fact in issue has to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places. In the present case, what was stated by the victim to her father immediately after the occurrece near the place of occurrence is the relevant fact and statement of Rajan (P.W.3) can be taken into consideration in support of the statement of the prosecutrix (P.W.1) in the facts and circumstances of the case.
21. As per medical report, which medical was conducted on 5.12.2013 whereas the occurrence is said to have taken place on 24.11.2013. There are possibilities that the doctor wound not find any external or internal injury on the body of the victim. Dr. Vineeta Singh (P.W.4) found the hymen intact. Her secondary sexual characters had not developed. Her menstrual cycle had not started. No injury was found on the body of the victim. As stated earlier, since the medical was conducted after quite some time, there are chances that the injuries would have healed and could not have been noticed by the doctor.
22. I have in mind that the evidence of a child witness has to be very carefully read and possibility of tutoring cannot be ruled out. But, in the present case, the statement of the victim when read as a whole inspires confidence and is a statement given by an innocent young girl. As far as the evidence of child witness is concerned, the evidence of a child must reveal that it was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong.
23. In State of U.P. Vs. Krishna Master & others, AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
24. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & another Vs. State of Punjab, (2006) 13 SCC 516).
25. The Hon'ble Apex Court in Criminal Appeal No. 769 of 2006, State Vs. Chhotey Lal decided on 14.1.2011 has laid down that if the doctor did not find any injury on the external or internal part of the body that does not make the testimony of the prosecutrix unreliable. Obviously all signs of force would not persist for that long period. Thus, the absence of injuries on the person of the prosecutrix is not sufficient to discredit her evidence.
26. Thus, the evidence of the victim if read as a whole coupled with the statement her father P.W.3 Rajan and the supportive statement of the victim recorded under Section 164 Cr.P.C. makes it clear that the prosecution has been able to prove the case beyond all reasonable doubt against the accused and the conviction of the accused has to be sustained.
27. Accordingly, the appeal is dismissed and the Judgment and order passed by learned Additional Sessions Judge, Court No. 8, Mathura on 6.2.2015 in Special S.T. No. 13 of 2014, State Vs. Netram Baghel arising out of Case Crime No.243 of 2013 under Sections 345A, 376, 504, 506 I.P.C. and Section 4 POCSO Act, Police Station Shergarh District Mathura is hereby upheld.
28. The accused is in jail. He will serve out the sentence as awarded by the trial court.
29. Let a copy of this judgment be transmitted to the trial court for its intimation.
Order Date :- 10.2.16 Ram Murti