Allahabad High Court
Vikram vs State Of U.P. on 27 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 92 Case :- JAIL APPEAL No. - 2998 of 2010 Appellant :- Vikram Respondent :- State of U.P. Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A. Hon'ble Gajendra Kumar,J.
1. The accused appellant who was tried for the offence under Section 376 read with Section 511 IPC, by Additional Sessions Judge, Shahjahanpur in Sessions Trial No.917/2007, has filed the present jail appeal before this Court being aggrieved by the judgment and order dated 10-02-2010 passed by the said Court whereby the accused-appellant has been convicted for the offence punishable under Section 376 read with Section 511 IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- and in default of payment of fine further rigorous imprisonment for one years.
2. The prosecution case in brief is that, on 06.03.2005, when minor daughter of the informant, aged 5 years was playing at the gate of her home, accused appellant-Vikram came and enticed her away, thereafter made an attempt to commit rape on her and on hearing the hue and cry raised by her daughter (victim), as her mother (informant) reached there and the accused ran away arranging his clothes. Thereafter, First Information Report was lodged by the informant (P.W.-1) on 07.03.2005 at about 15:15 hours bearing Case Crime No.62 of 2005 at Police Station-Khutar, District-Shahjahanpur, under Section 354 IPC.
3. The Investigating Officer (P.W.-6), on registration of crime vide first information report (Ext. Ka-3) started with investigation.He recorded the statements of the witnesses and inspected the place of occurrence and prepared the site plan (Ext. Ka-5). The Investigation Officer (P.W.-6) on conclusion of the investigation submitted the charge-sheet (Ext. Ka-6) against the accused appellant for the offence under Section 376/511 IPC and since the case was exclusively triable by the court of Sessions Judge, it was committed to court of sesssions judge and later on transferred to the court of Additional Sessions Judge, Shahjahanpur in Sessions Trial No.917/2007 as stated above. The Additional Sessions Judge, Shahjahanpur on 10-02-2010 framed the charge against the accused appellant to the effect that accused-appellant on 06-03-2005 at some time in village Hitaura within the circle of P.S. Khatar district Shahjanhanpur attempted to rape on the victim aged 5 years, and in such attempt did certain act towards the commission of said offence thereby committed an offence punishable under Section 376 read with Section 511 IPC. Accused appellant pleaded not guilty and prayed for trial.
4. Prosecution in support of its case examined as many as six witnesses i.e. Smt. Laung Shri, mother of victim (P.W.-1), victim (P.W.-2), Ram Prasad, father of victim (P.W.-3), Dr. Manju Sachan (P.W.-4), Chhote Lal, H.C.P.-47 (P.W.-5) and Suresh Pal Sharma, S.I. (P.W.-6).
5. In documentary evidence, prosecution produced and proved the Tahrir Report as Ext.Ka-1, injury report as Ext.Ka-2, chick FIR as Ext.Ka-3, copy of G.D. as Ext.Ka-4, site plan as Ext.Ka-5 and charge-sheet as Ext.Ka-6.
6. On the closure of prosecution evidence, all the incriminating material was put to the accused. He made his statement under Section 313 of Code of Criminal Procedure and denied the allegation of the offence under Section 376 read with Section 511 IPC and the incident as alleged by prosecution. He submitted that he has been falsely implicated by the prosecution and he is not involved in committing the aforesaid offence.
7. P.W. 1, Smt Laung Shri who is mother of the victim in her testimony stated that occurrence took place three years and three months ago from today at 10-11 A.M. my daughter victim was playing at the gate of her home. My neighbour Vikram came there enticed away my daughter victim aged 5 year and laid her on cot and having made her naked, sat over her, then my daughter raised alarm, then I rushed from the home and reached the place of occurrence, right then vikram ran away arranging his clothes, in northern direction. When my husband came over I got the report scribed by him, having dictated the same. Both went to the police station alongwith their daughter and report was lodged. She proved the report as Ext.Ka-1.
8. P.W. 2, after preliminary interrogation to ascertain her capacity to understanding and ability to depose, the 9 year old victim has stated in her testimony that the incident took place three years from today at noon. At the time of incident I was playing at the gate of my home. Identifying the the accused she stated that this Vikram enticed her away to shop then he laid me on cot and lowered my panty and made me naked. The accused took my panty off with the intention to rape me. He came over me and lay on me and committed dirty deed on me. The accused entered his urine pipe into my place of urine. I raised alarm then my mother and other villagers came over there, right then, accused ran away, leaving me. Vikram's, the accused present in court, urine pipe entered a little into my place of urine. I was examined at Government hospital. To court she stated that Vikram belongs to my neighbourhood, since before the incident he used to come to my home and I know him very well.
9. P.W. 3, Ram Prasad, who is father of the victim in his testimony he stated that at the time of incident he was away at Aligarh for earning, his wife telephonically informed him about the incident that Vikram has forcefully raped his daughter aged 5 year. On receiving information, he came home and his wife told him that the accused Vikram forcefully taken away his daughter and forcefully raped her. On her dictation he scribed the report, went to police station and lodged the report. Thereafter took her daughter to hospital and got her medically examined.
10. PW-4, Dr Manju Sachan is a Medical Officer, who proved in her testimony medical report as Ext.Ka-2 and stated that she had conducted the medical examination of the victim and had given report mentioning therein that there is no sign of injury on thighs and vagina. The hymen of victim is intact and is normal in nature, due to which the finger test cann't be conducted and the sample was also not taken. The condition of the victim's private part is also normal.
11. PW-5, H.C. Chotey Lal, who proved, in his testimony, chick FIR and copy of G.D. as Ext.Ka-3&4. He stated that he was on his duty at the concerned police station on 07.03.2005, informant, who is the mother of the victim, filed a written complaint against the appellant alleging therein that appellant has tried to sexual assault upon her daughter, aged about 5 years, on the basis of which, he lodged the FIR. At the time of lodging of the FIR, informant along with victim came and her husband was also present there.
12. PW-6, I.O. S.K. Sharma, who proved, in his testimony, site plan and charge-sheet as Ext.Ka-5 &6. On 07.03.2005, in his statement, he stated that after lodging of the FIR, he reached at the spot and recorded the statements of the victim as well as her parents, thereafter, on 08.03.2005 after investigating the case thoroughlly, submitted the chargesheet under Sections 354, 376 & 511 IPC.
13. The learned trial Court after hearing the parties' counsel and considered and analysed the evidence on record found the case of prosecution proved beyond all reasionable doubts against the appellant and has convicted the accused-appellant as indicated in para-1 of the judgment. Aggrieved, the accused has preferred this appeal from jail.
14. I have heard learned amicus curaie for the accused-appellant, learned AGA for the State and perused the original record of the trial Court.
15. Learned counsel for the appellant submits that the unexplained delay in the F.I.R. shows that it was lodged as an afterthought without showing the time and place of occurence. He further submits that both the parties had some quarrel as there was some dispute between the mother of the victim and her sister-in-law (Jethani) and only to mount pressure upon the accused false and frivolous FIR has been lodged out of enmity. He further submitted that the prosecution version is highly improbable. The prosecution did not produce any independent witness in support of its case and the witnesses relied upon by the court below are all of the same family and are interested witnessees. He further submits that because the appellant did not have opportunity to cross examine the prosecutrix, therefore, her uncorroborated statement can not be read in evidence. He further submits that the proved facts and circumstances available on record of the case, make out a case of preparation only against the accused and he has been illegally convicted for the offence punishable under Section 376 read with Section 511 IPC. Drawing attention to the contents of the FIR as also the statement of the victim, learned counsel for the appellant has contended that taking off panty of victim from her body would only mean that the accused was making preparation to forcibly ravish the minor daughter of the informant. From perusal of the memo of appeal, it has also been averred that if at all the facts appearing in the case are taken to be true, then also the offence would not travel beyond section 354 IPC, so the appellant had been illegally convicted and sentenced u/s 376/511 IPC.
16. Per contra learned AGA has defended the impugned judgment and order and has submitted that the learned trial court has rightly convicted the appellant. He further submitted that in our tradition bound country a rural girl of tender age would not tarnish or damage her own reputation and image merely because her family members had any dispute with or animosity against the accused by volunteering to falsely claim that she had been raped and defiled. According to him, the evidence not only shows the intention to commit the rape, an attempt was also made to do it and successful in completion thereof. The contention of the AGA is that the evidence of victim P.W.-2 is cogent, consistent and trustworthy, appellant missed opportunity to cross examine her for no fault of her own. Since her testimony has been duly corroborated by the testimony of P.W.1 and P.W.3. So far as offence of attempt to rape is concerned, that is well established by the testimony of P.W.-2.
17. I have given my thoughtful consideration to submissions made and the entire evidence on record.
18. In view of the rival contentions first I would like to discuss as to whether the prosecution witnesses of fact were rightly believed or not by the trial court. It is worthwhile to mention that all the prosecution witnesses of fact are related to each other but that alone cannot be a sufficient ground to discard their testimony out rightly.
19. In Dalip singh and Ors v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
20. The above decision has since been followed in Guli Chandtate of Rajasthan in which Vadivelu Thevar v. Sate of Madras also relied upon. The Apex Court observed that we are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. state of Rajasthan. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.
21. Again in Masalti and Ors. v. State of U.P. Apex Court observed : (p. 209-210 para 14):
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
22. Thus In view of the above legal position it is now settled that inter-se relationship of the witnesses cannot be a ground to discard them but while assessing their evidence the Court must be at guard. The prosecution in the present case examined P.W.1 Smt Laung Shri, mother of the victim, P.W.2 the prosecutrix and P.W.3 Ram Prasad father of the victim.
23. P.W.1 Smt Laung Shri is the mather of the prosecutrix while P.W.3 is her father. In this way all are related to each other and as per the above discussion their evidence requires close scrutiny.
24. P.W.1, Smt. Laung Shri, who proved in her testimony, Tahrir as Ext.Ka-1, is mother of the victim, she stated that occurrence took place three years and three month ago. At 10-11 a.m. when her daughter (victim), aged about 5 year, was playing at the gate of her home, accused-appellant (Vikram) came there, enticed her daughter away and, thereafter, laid (victim) on the cot and disrobbing her, sat upon the victim. When she (victim) raised alarm to escape herself, then her mother, (P.W-1) rushed towards the place of occurrence and after seeing her (P.W-1), accused-appellant arranging his clothes ran away from the spot in northern side. When her husband (P.W-3) return back to his home, she described the said incident and, thereafter, both went to the police station alongwith their minor daughter (P.W.-2) and lodged the FIR.
25. This witness was tried to be belied on the ground that he has come to depose against the appellant on account of enmity. Regarding the enmity it was pointed out that at the time of occurrence, Mohan Lal was the pradhan of the village and she was not on talking terms with the pradhan but accused was on talking terms with the pradhan. Thus the enmity pleaded by the appellant has not been proved. Moreover, the above enmity could not prompt the witness to sacrifice the chastity of her daughter. There could be several other ways to take revenge on account of the above enmity, if it was there, and she in normal circumstances would not take revenge through her daughter. Thus the ground of enmity, as suggested by the appellant, is not convincing and it cannot be held that the applicant has been falsely implicated on account of any such enmity.
26. The statement of the witness has also been tried to be belied on the ground that there is contradiction in her statement and FIR about the time of occurrence and the site plan about the place of occurrence. This witness has stated that time of the occurrence is 11 A.M. and accused enticed away and laid on the cot. In site plan, place of occurrence is shown as the house of the accused. From the statement of the witness the prosecution story regarding the time, place and manner of occurrence is fully proved and there is nothing on record to disbelieve this witness. She was rightly believed by the trial court.
27. P.W. 3, Ram Prasad, who is a father of the victim, stated that at the time of incident, he went Aligarh for earning his livelihood. His wife telephonically informed him about the said incident that accused-appellant has forcefully raped his daughter. On receiving such information, he came back to his home, and scribed report at her dictation, thereafter, he along with his wife and daughter went to the police station and lodged the FIR. Thereafter, they took her daughter to the hospital to get her medically examined.The accused was given opportunity to cross examine but he failed to availed the same. He is also a reliable witness and was rightly believed by the trial court
28. P.W.-2, herself is a victim, after preliminary interrogation to ascertain her capacity of understanding and ability, 9 year old victim after identifying the accused, has stated that the incident took place three years ago at noon. At the time of the incident, when she was playing at the gate of her house, accused-appellant came there and enticing her away and taken to the shop, thereafter, he (accused) laid her on the cot disrobbing her entered his urine pipe a little into her place of urine. Thereafter, she raised alarm to escape herself then her mother (P.W.1) and other villagers came over there and after seeing them accused ran away from the spot. She was examined at Government hospital. To court she stated that Vikram belongs to her neighbourhood,since before the incident he used to come to her home and she knows him very well. As counsel for the accused remained absent, accused also refuse to cross examine, his opportunity was closed, coss examination - Nil .
29. A child witness is competent to testify u/s 118, Evidence Act. Tutoring cannot be a ground to reject his evidence. A child of tender age can be allowed to testify if it has intellectual capacity to understand questions and give rational answers thereto. Trial Judge may resort to any examination of a child witness to test his capacity and intelligence. If on a careful scrutiny, the testimony of a child witness is found truthful, there can be no obstacle in the way of accepting the same and recording conviction of the accused on the basis of his testimony.
30. As the witness was tested before being examined and court found the witness is average intellegent and capable to understand the questions and answer, ADGC (Crl) was permitted to examine and the witness was examined and after examination-in-chief, to court she stated that Vikram belongs to her neighbourhood, since before the incident he used to come to her home and she knows him very well. An opportunity was given to the accused to cross-examine witness but he failed to avail the same, moreover, the said order was not challenged in revision, so the same attained finality. At this stage it can not be allowed that her testimony is not admissile in evidence as she has not been cross-examined in the face of the circumstances that no animus against the witness can be attributed to falsely implicate the accused. The testimony of this witness is cogent, consistent and trusworthy. She is not a tutored witness. She is a reliable witness and has rightly been believed by the trial court.
31. The question that falls for consideration of this court is, as to whether the offence committed by the appellant would come within the scope of Section 376 read with Section 511 IPC or not.
31. Since the main thrust of learned counsel for both the parties is on the ingredients of Section 511 IPC IPC, it would be appropriate to reproduce Section 511 IPC IPC for ready reference and the same reads as under :-
"Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment-Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
32. Considering the abovesaid peculiar fact situations of the present case, with a view to arrive at a conclusion, so as to answer the question posed above, there are three different and relevant stages, which are to be analysed from the point of view of this Court. The first stage was whether there was any mens rea which is sine qua non for commission of any offence. In the present case, the above noted first stage of mens rea came to be covered by the appellant, once he went near the house of the victim knowing fully well that the prosecutrix was playing all alone. The second stage was the preparation. The accused-appellant covered the second stage also by laying her in the cot and, thereafter, lowering the panty of the victim and making her naked. The third and crucial stage was an attempt to commit the rape. It is to be seen at this stage, whether the appellant was determined for committing the offence or not. The relevant words from Section 511 IPC, quoted above, would come handy at this stage and the same read as under :-
"and in such attempt does any act towards the commission of the offence".
33. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act alone in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
34. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
35. Applying the principle of harmonious interpretation, even one action taken at the hands of accused towards the commission of offence would amount to an attempt because the words are: "does any act". In the present case, the appellant did not only do one act, but more than five acts, which show his strong determination for commission of the offence. These acts were (i) knowing fully well that the prosecutrix/victim was playing all alone; (ii) laying her in the cot and, thereafter, lowering the panty of the victim and making her naked: (iii) came over her; (iv) laying down himself on the prosecutrix/victim; (v) resistance shown by the prosecutrix by screaming loudly and act of not desisting by the appellant. All these actions of the appellant, put together and considered, keeping in view the attending circumstances of the present case, go to establish the strong determination of the appellant in attempting to commit the offence of rape. The accused/Appellant has not shown any reluctance that he is going to stop from committing the aforesaid offence, therefore, had there been no interference, in form of raising alarm by the victim and reaching of mother of victim at the place of occurence , the accused/appellant would have been succeeded in executing his criminal design, the conduct of the accused in the present case is indicative of his definite intention to commit said offence.
36. The above said view taken by this Court finds support from the judgment of the Hon'ble Supreme Court in Chaitu Lal versus State of Uttarakhand, (2019) 20 SCC 272. The relevant observations made in para 10 of the judgment, read as under:
"Herein, although the complainantvictim and her daughter were pleading with the accused to let the complainantvictim go, the accusedappellant did not show any reluctance that he was going to stop from committing the aforesaid offence. Therefore, had there been no intervention, the accusedappellant would have succeeded in executing his criminal design. The conduct of the accused in the present case is indicative of his definite intention to commit the said offence."
37. Thus, drawing thin line distinction between the commission of offence under Section 376 IPC read with Section 511 IPC i.e. attempt to commit rape and offence under Section 354 IPC i.e. offence of outraging the modesty of a woman, this Court is of the considered opinion that the present case falls under Section 376 IPC read with Section 511 IPC and not under Section 354 IPC. In this view of the matter, the question posed, hereinbefore, is answered, accordingly.
38. It is the settled proposition of law that conviction can be based on the testimony of prosecutrix/victim alone without any corroboration, if the testimony of the prosecutrix/victim inspires confidence. I say so because the prosecutrix/victim is not an accomplice, but victim. Her evidence would be more reliable than that of an injured witness. In the present case, the evidence given by the prosecutrix/victim does inspire confidence and the conviction could have been based on the statement of the prosecutrix/victim alone. However, there is a categoric and strong corroboration available in the present case, in the form of statements of other PWs, particularly PW-1, Smt. Laung Shri (complainant).
39. The above said view taken by this Court finds support from the judgment of the Hon'ble Supreme Court in Kamalanantha and others versus State of Tamil Nadu, (2005) 5 SCC 194. The relevant observations made in para 34 of the judgment, read as under:
"It is trite law that the prosecutrix is not an accomplice. The evidence of victim of sexual assault, if inspires confidence, conviction can be founded on her testimony alone unless there are compelling reasons for seeking corroboration. Her evidence is more reliable than that of injured witness. In a case of sexual assault corroboration as a condition for judicial reliance is not a requirement of law but a guidance of prudence. Examining the testimony of prosecutrix in the background, as stated above, and in the facts and circumstances of this case, we are of the clear view, that the testimony of prosecutrix inspires confidence, on the basis of which alone conviction can be safely sustained. Moreover, in the instant case we find that the statements of the prosecutrix are well corroborated by medical and other contemporaneous documents. It is also well established principle of law that minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.(See State of Punjab v. Gurmit singh)."
40. So far as delay in lodging of the FIR is concerned, there is sufficient explanation in the FIR itself as at the time of the incident, father of the victim i.e. husband of the complainant was out of station and as soon as the said incident came to his knowledge, he came there and lodged the instant FIR, therefore, this cannot be said that the same has been done as an afterthought. At the time of the incident, prosecutorix was of her tender age and no one will put his/her girl's honour at stake considering her future. As per statement of P.W.-1 (mother of the victim), after seeing her, accused ran away arranging his clothes from the spot also supports the ingredients of Section 6 of the Evidence Act. The testimony of the victim (P.W.-2) to the extent that the accused had sexual intercourse with her cannot be said to have proved offence under Section 376 IPC since her medical examination does not support prosecution version that she was subjected to sexual intercourse at the time of incident as alleged. The trial Court which has considered the entire evidence on record in this connection and the findings arrived at by the trial Court appears to be well reasoned. Minor contradictions pointed out by the defence are not material and does not make the testimony of these witnesses unbelievable to that extent. I, therefore, find myself in full agreement with the reasons given by the trial Court that the accused attempted to commit rape on the victim (P.W. 2), and the conviction of the accused for the said offence under Section 376 read with Section 511 IPC deserves to be maintained and does not call for any interference in this appeal.
41. Therefore, keeping in view the fact situation and evidence discussed in the forgoing part of the judgment, I unhesitatingly hold that the present case would fall under Section 376 read with Section 511 IPC and it would not fall under Section 354 IPC. Accordingly, the instant Jail Appeal deserves to be dismissed and is dismissed.
42. Since the appellant has already served out the entire sentence awarded to him including the default clause of non-payment of fine, he need not surrender, if he is not wanted in any other case crime.
43. A copy of this order be sent to jail and another copy be sent to the court concerned along with the original record forthwith.
44. Sri Rajesh Kumar Singh Advocate, who has very efficiently assisted this Court in the hearing of the appeal as Amicus Curiae, shall be paid Rs.11,000/- as fee within 15 days from the date of this order.
45. There will be no order as to costs.
Order Date :- 27.9.2022 Ashutosh [Gajendra Kumar, J.]