Allahabad High Court
Mahesh Rathaur vs State Of U.P. on 7 September, 2022
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 43 Case :- CRIMINAL APPEAL No. - 2867 of 2013 Appellant :- Mahesh Rathaur Respondent :- State of U.P. Counsel for Appellant :- Sushil Kumar Dubey,Shivanand Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Per: Hon. Shiv Shanker Prasad, J.)
1. This appeal has been preferred by appellant, Mahesh Rathaur against the judgment and order dated 30th May, 2013 passed by the Special Judge/Additional Sessions Judge, Etawah in Sessions Trial No. 167 of 2012 (State Vs. Mahesh Rathaur), arising out of Crime No. 234 of 2012, under Sections 323,376 and 506 I.P.C., Police Station-Bakevar, District-Etawah, whereby the accused-appellant has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 376 I.P.C. with a fine of Rs. 10,000/- and in default thereof, to further undergo six months simple imprisonment.
2. We have heard Mr. Shiva Nand Mishra, learned counsel appearing for the accused-appellant and Mr. Arunendra Singh, learned A.G.A. for the State as also perused the entire materials available on record.
3. The prosecution story, as reflected from the records, is as follows:
On the basis of oral report made by the informant/P.W.-4, namely, Mr. Yasin Ali, a case being Crime No. 234 of 2012 under Sections 323,376/511 and 506 I.P.C. was registered on 5th April, 2012 at 03:20 p.m. at Police Station-Bakevar, District Etawah alleging therein that on 3rd April, 2012 at about 03:00 p.m., the daughter of the informant (hereinafter referred to as the "victim"), aged about 11 years, who was studying in Class-V), along with her younger brother, namely, Ansar aged about 7 years, went to jungle/ravine situated outside the village for collecting woods, where the accused-appellant, who was already present there, with an evil intention, grabbed the victim and dragged her inside the jungle/ravine and he attempted to rape her. It is also alleged that when the victim protested, she was assaulted and threatened not to disclose about the incident to her parents. After coming to her house, the victim informed her mother about the said incident. It is further alleged that since the first informant-P.W.4 had gone to his relative's place and returned only on 5th April, 2012, therefore, as soon as he came to know about the incident, he has come to the Police Station for lodging his report. On the basis of the aforesaid report, the victim was taken to the hospital by Women Constables, namely, Sunita Devi and Pinki Devi for her medical examination, where Dr. Jyotsana Bhatia (P.W.-1) examined the victim internally and for external injuries, she was referred to Emergency Medical Officer. Dr. Jai Prakash Chaudhari (P.W.-3) examined the external injuries of the victim. For knowing the correct age of the victim, she was referred to the District Hospital, Etawah for X-ray, where Dr. Dinesh Singh conducted the same.
4. Dr. Jyotsana Bhatia (P.W.-1), who conducted the medical examination of the victim internally, has opined that her hymen was torn and no mark of any injury in her private parts was found nor any bleeding was otherwise found in her private parts. On the basis of said medical examination, no definite opinion about rape was given by P.W.-1. As per the X-ray report, the victim was found to be 11 years of age. Report of the Internal examination of the victim is as follows:
"Hymen torn, vagina admits one finger, vaginal smear taken and send to pathologist. No mark of injury on private parts. No bleeding. P/V. She has not attained menarche."
5. Dr. Jai Prakash Chaudhari (P.W.-3), who examined the external injuries of the victim, has found following four injuries on the body of the victim:
"(i) abrasion size 3 cm x 0.5 cm on outer aspect left arm, 18 cm. Above left elbow; dark brownish red scab formed,
(ii) abrasion 2 cm long linear lie on back of left elbow; dark brownish red scab formed,
(iii) contusion size 4 x 2 cm on dorsum of left hand & 2 cm. above left wrist, bluish black, and
(iv) contusion 2 x 1.5 cm. on front of left leg, 7 cm below left knee, bluish black."
In the opinion of P.W.3, all the above injuries found on the body of the victim, are simple in nature.
6. The statement of the first informant/P.W.-4 along with that of the victim/P.W.-5 was recorded under Section 161 Cr.P.C. by the Investigating Officer. Thereafter charge-sheet was submitted against the accused appellant under Sections 323, 376/511 and 506 I.P.C. The Magistrate concerned took cognizance of the charge-sheet and as the offence was triable by the court of Sessions, the same was committed to the Court of Sessions. Consequently, Sessions Trial No. 167 of 2012 (State Vs. Mahesh Rathaur) was registered in the matter. The trial proceeded in the matter and the statements of various witnesses were recorded.
7. It was the first time that when the informant was produced as P.W.-4, he in his statement made before the trial court on 2nd January, 2013, which was completed on 19th March, 2013, has stated that the offence of rape was committed by the accused-appellant upon the victim instead of attempt to rape, as disclosed earlier in the first information report and the statements recorded under Section 161 Cr.P.C. and thereafter, the victim, who was produced before the Court as P.W.-5, in her statement made on 7th March,2013 has stated that she was raped by the accused-appellant. On the basis of aforesaid statements of P.W.-4 and P.W.-5, the charges were altered on 14th March, 2013 so as to delete Section 511 I.P.C. and the accused-appellant was charged under Section 376 I.P.C., whereas initially, in view of the framing of charge order dated 9th December, 2012, the accused-appellant was charged under Sections 323, 376/511 and 506 I.P.C. It is thereafter that the trial proceeded and statements of other witnesses were recorded in the matter.
8. In order to bring home the charge, the prosecution has adduced the evidence of Dr. Jyotsana Bhatia as P.W.-1, who has stated that she has conducted the preliminary medical examination of victim and latter referred her for examination of external injuries to the Emergency Medical Officer. P.W.-1 has stated in her examination-in-chief that in the internal examination conducted by her, she found that the hymen was torn and no mark of any injuries in private parts of the victim was found.
9. Head Police Constable-13, namely, Nathu Ram, who has proved that Chik first information report, has been adduced as P.W.-2. He has stated that he entered the contents of the oral report of the informant in the General Diary. P.W.-2 has categorically stated in his cross-examination that he had correctly recorded the complaint of first informant (P.W.-4), who has also been read out of the complaint, on which he has affixed his thumb impression. P.W.-2 has clearly stated that he was informed by the informant (P.W.-4) that the daughter of the victim (P.W.-5) was dragged inside the jungle/ravine and raped was attempted upon her by the accused-appellant. No external injuries were otherwise noticed by him on the victim.
10. Dr. Jai Prakash Chaudhary, who has examined the external injuries of the victim, has been adduced as P.W.-3. He has stated that on examination of the victim, he found four injuries on the body of the victim, which has been quoted herein above and in his opinion, the same are simple in nature.
11. Yasin Ali, informant, who is father of the victim, has been adduced as P.W.-4 on 2nd January, 2013 (whose statement has been completed on 19th March, 2013). He has supported the prosecution story by stating that the victim was forcibly taken in the jungle/ravine and she was raped by the accused-appellant. It is further stated that this fact was disclosed by the victim to her mother just after the incident but the informant was informed by the mother of the victim about the same when he returned from the place of his relative. In the said statement, P.W.-4 claims to have informed the Police personnel about the commissioning of the offence of rape upon the victim but in that event it was not recorded in the first information report, he cannot yet give any reason.
12. Victim has also been adduced as P.W.5 on 7th March, 2013, who has fully supported the prosecution story by stating that he was forcibly dragged by the accused-appellant in the jungle/ravine and was raped. In her cross-examination, the victim/P.W.-5 has admitted that her father (informant-P.W.4) was working in the agricultural field of Chandu Bajpai, who had contested the election of the post of Village Pradhan, who had lost to Nawab Singh and that the accused, his brother and other family members were in the party of Nawab Singh. She has also stated that when the cattle herders and other people including Shiv Bharat came to the spot, Mahesh was on her body and seeing them, he ran away. No one has tried to catch him. All the persons had seen the condition of the victim.
13. The Investigating Officer, Sub-Inspector Malkhan Singh has been examined as P.W.-6, who has clearly stated that the victim had not disclosed the factum of rape in her statement recorded by the Police under Section 161 Cr.P.C. He has further stated that the blood stained clothes of the victim (P.W.-5) were also not provided to the Investigating Officer and no recovery memo in that regard was made. He has categorically stated that on the basis of evidence collected during investigation, he did not found the offence of rape committed in the matter and on the basis of statement of victim at best a case of attempt to rape was commissioned and therefore, charge-sheet was filed in that regard. P.W.-6 has also stated that the first informant in his statement recorded under Section 161 Cr.P.C. has also not disclosed about the commissioning of offence of rape upon the victim.
14. After recording of the prosecution evidence, the statement of the accused-appellant was also recorded under Section 313 Cr.P.C. in which he has denied his involvement in the alleged offence and denied the allegation/charge. Accused appellant has specifically stated before the trial court that due to village party bandi, he has been falsely implicated in this case and he is otherwise, innocent. The defence did not examine any witness from its side.
15. From the material placed on record, it does not appear that the statement of the victim (P.W.-5) was recorded under Section 164 Cr.P.C. upon the Magistrate concerned and in her statement recorded by the Police under Section 161 Cr.P.C., she had only disclosed about the offence of attempt of rape and not actual commissioning of offence of rape.
16. The trial court on the basis of evidence adduced during the course of trial, has found the offence under Section 376 I.P.C. to have been committed against the victim and consequently, has awarded sentence of life imprisonment along with fine of Rs. 10,000/- .
17. Aggrieved by the aforesaid judgment and order of conviction and sentence, the accused-appellant is before this Court by means of the present criminal appeal.
18. Mr. Shivanand Mishra, learned counsel appearing for the accused-appellant submits that as per the prosecution version, the alleged incident took place on 3rd April, 2012 at 03:00 p.m. whereas the first information report has been lodged by the informant/P.W.-4 on 5th April, 2012 at 03:20 P.M. i.e. three days delay for which no plausible explanation has been given by the prosecution.
19. Learned counsel for the accused-appellant also submits that the victim in her statement recorded under Section 161 Cr.P.C. by the Police had only alleged attempt to rape and had not disclosed about any actual act of rape committed upon her. He further submits that the accused-appellant has been falsely implicated and that the medical report does not support the commissioning of rape upon the victim. As per the medical examination report of the victim, neither there was any mark of injury in the private parts of her body nor any bleeding was noticed. He then submits that the hymen of the victim was otherwise found torn. Learned counsel for the accused-appellant submits that the accused-appellant has been falsely implicated in the present case only on account of village enmity, as he had supported Nawab Singh, who won the election on the post of Village Pradhan against Chandu Bajpai, for whom the first informant (P.W.-4) worked. Learned counsel for the accused-appellant next submits that in the first information report as also in the statements of the witnesses including the victim and informant recorded under Sections 161 Cr.P.C., the disclosure is only about attempt to rape and that is why, the charge-sheet was submitted under Sections 323, 506 and 376/511 I.P.C. against the accused-appellant. Submission is that nearly after eleven months from the date of lodging of the first information report to be precise on 5th April, 2012 and after nearly nine months from the date of recording of statements of the victim and informant under Section 161 Cr.P.C. it was the first time that when the informant was produced as P.W.-4, he in his statement recorded before the trial court on 2nd January, 2013, which was completed on 19th March, 2013, has stated that the offence of rape was committed by the accused-appellant upon the victim and thereafter, the victim, who was adduced before the Court as P.W.-5, in her statement recorded before the trial court on 7th March,2013, has stated that she was raped by the accused-appellant. The aforesaid change in the version of the prosecution (statements of P.W.-4 informant and P.W.-5 victim) clearly indicates that it is a case of improvement. Such improvement has only been made by the prosecution only to falsely implicate the accused-appellant. The subsequent change of stand of the victim does not find any corroboration from the material available on record, and therefore, the trial court has grossly erred in relying upon the statement of the victim as P.W.5, where statement ought to have been subjected to greater scrutiny. It is also argued by the learned counsel for the accused-appellant that in such circumstances, the conviction of the accused-appellant under Section 376 I.P.C. cannot be legally sustained. On the cumulative strength of the aforesaid, learned counsel for the accused-appellant submits that the impugned judgment and order of conviction is liable to be quashed.
20. Learned A.G.A., on the other hand, has supported the prosecution version and submits that the statement of the victim is credible in the facts and circumstances of the case and since she has clearly disclosed about the commissioning of the offence of rape, therefore, the trial court has not committed any error in recoding conviction of the accused-appellants under Section 376 I.P.C.
21. It is in the context of above facts that the present appeal has come up before us for hearing.
22. We have considered the submissions made by the learned counsel for the parties and have gone through the records of the present appeal specially the judgment and order of conviction and the evidence adduced before the trial court.
23. The facts as have been noticed above would clearly go to show that a first information report was lodged on 5th April, 2012 in respect of the incident of 3rd April, 2012 on the oral complaint of the first informant, namely, Yasin Ali. Thumb impression of the informant has been affixed on the report, which contains the allegations about the attempt of rape being committed upon the victim by the accused-appellant. The first information report does not contain any allegation with regard to actual commissioning of rape. Medical examination report of the victim, which has been submitted by Dr. Jyotsana Bhatia (P.W.-1), who has examined the victim internally, shows that neither there was any mark of injury in the private parts of the body of the victim nor any bleeding was observed but hymen of the victim was otherwise found torn. On the basis of such report, the Doctor has clearly opined that no definite opinion about the rape can be given in the matter. We further find from the records that the statements of the victim as also her father i.e. informant were recorded under Section 161 Cr.P.C. in which they have alleged only about the attempt of rape upon the victim and there is no allegation in their statements about the actual commissioning of rape. The Investigating Officer (P.W.-6) and the Head Police Constable Nathu Ram (P.W.-2), who has proved the chik first information report have also clearly stated that the first informant only alleged attempt to rape upon the victim in his complaint and has never claimed about actual rape being committed upon the victim. It is on the basis of contents of first information report as also the statements of the witnesses including the victim and informant under Section 161 Cr.P.C. that the charge-sheet was submitted under Sections 323, 506 and 376/511 I.P.C. in the matter on 18th April, 2012.
24. It is almost after nine months of the alleged incident which took place on 3rd April, 2012 that for the first time, the informant in his statement recorded before the trial court as P.W.4 on 2nd January, 2012 and therefore, in the statement of victim as P.W.5 on 7th March, 2013, they have come up with a different story of actual commissioning of rape. However, the complaint made orally by the informant-P.W.-4 did not contain any allegation with regard to rape upon the victim.
25. In the facts and circumstances of the case, we do not find the statements of the informant and the victim made for the first time before the trial court as P.W.-4 and P.W.-5 about the commissioning of offence under Section 376 I.P.C., reliable or convincing. We find that the statements of the first informant-P.W.4 and the victim-P.W.5 about commissioning of offence of rape, appears to be clear improvement in the prosecution version, inasmuch as no plausible explanation has been put forth as to why such disclosure was not made, when the first information report itself was lodged or when the statements of such witnesses including the victim and informant were recorded by the Investigating Officer under Section 161 Cr.P.C. Even at the time of framing of charge i.e. 9th October, 2012, such facts were not disclosed by the first informant or the victim. The statement made by the informant for the first time in Court as P.W.-4 on 2nd January, 2013, after nearly nine months from the date of alleged incident of commissioning of offence, therefore, does not inspire confidence of the Court. It may also be noticed that the accused appellant has asserted in his statement recorded under Section 313 Cr.P.C. that he has been falsely implicated on account of enmity relating to election on the post of Village Pradhan and the victim in her cross-examination has also admitted that her father was supporting Chandu Bajpai for whom he worked, who had lost election of the said post to Nawab Singh to whom the accused-appellant and his family members supported.
26. Subsequent statements of the victim-P.W.-5 and informant-P.W.4, therefore, do not appear to be reliable, particularly when it is otherwise not supported by medical evidence.
27. So far as the charge under Section 376/511 I.P.C. against the accused-appellant is concerned, we find that the first information report does contain specific allegations in that regard and the victim along with other witnesses have also supported such allegations. From the medical examination report of the victim submitted by Dr. J.P. Chaudhary (P.W.-3), who examined her externally, there were two marks of abrasion as also two marks of contusion on the body of the victim, which are, in the opinion of P.W.-3, were about 48 hours old.
28. From the statement of the victim, coupled with the marks of injuries sustained by her and the statements of other witnesses, we find that the charge originally framed against the accused-appellant of attempt to rape under Section376/511 I.P.C. is proved beyond reasonable doubt.
29. In view of the above discussions, the present appeal succeeds in part. The conviction of the accused-appellant is altered from Section 376 I.P.C. to Section 376/511 I.P.C. and in view of the provisions contained in Section 57 I.P.C., the accused appellant is sentenced to undergo 10 years imprisonment. The imposition of fine upon the appellant. as was imposed under the impugned judgment and order of conviction, is, however, sustained.
30. Accordingly, the present appeal stands partly allowed.
31. In the event, the accused-appellant has already served the aforesaid sentence i.e. 10 years as on date, he shall be released on compliance of Section 437-A Cr.P.C. and payment of fine, unless he is wanted in any other case.
(Ashwani Kumar Mishra, J.) (Shiv Shanker Prasad, J.) Order Date :- 7.9.2022 Sushil/-