Allahabad High Court
Mustakeem vs State Of U.P. on 6 January, 2022
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 19.07.2021 Delivered on 06.01.2022 Court No. - 47 Case :- CRIMINAL APPEAL No. - 351 of 1990 Appellant :- Mustakeem Respondent :- State of U.P. Counsel for Appellant :- Ajeet Kumar, Rajesh Kumar Mishra (A.C.) Counsel for Respondent :- A.G.A. Hon'ble Rajendra Kumar-IV,J.
1. Feeling aggrieved and dissatisfied with the impugned judgement and order dated 13.02.1990 passed by IVth Additional Sessions Judge, Shahjahanpur in Session Trial No.264 of 1989, under Sections 376/511 I.P.C., Police Station Sadar Bazar, District Shahjahanpur by which trial court convicting the accused-appellant for the offence punishable under Section 376/511 I.P.C. and sentencing him to undergo 4 years rigorous imprisonment with fine of Rs. 500/- with default stipulation, accused-appellant has preferred the present appeal.
2. As per prosecution case, on 12.08.1987 in the evening, informant's brother Shahjad left the house and went to visit Lal Imli Chauraha, when he did not get home till late, his younger sister victim aged about 9 years went to find out her brother. While going to cross road near biscuit factory of Atiullah, accused-appellant met her. He caught hold the hand of victim and started taking towards Mazar, victim / prosecutrix tried to raise alarm, accused pressed her mouth by his hand and threatened her to kill. He took her to Mazar and untied the victim's salwar. He made her to lie on the earth and tried to rape her. When victim shouted , Tahir Hussan Khan and Rakesh Singh rushed their with torches and caught the accused on spot at 9:00 p.m. Accused, on being asked, disclosed his name as Mustakeem son of Amir Ali. In the meantime, informant arrived there searching his brother and sister (prosecutrix). Accused-appellant was taken to police station concerned. F.I.R. was got registered on the written tehrir Ex.Ka-1 of informant.
3. Upon the written tehrir, Chick F.I.R. Ex.Ka.-2 was registered bearing Case Crime no. 380 of 1987, under Sections 376/511 I.P.C. by constable muharrir P.W.-4. Entry of case was made in general diary, copy whereof is on record.
4. Investigating Officer, P.W.-5 Balram Singh, undertook the investigation, recorded the statement of victim and other witnesses, visited spot, prepared site plan and after completing entire formalities of investigation submitted charge sheet Ex.Ka.-7 against the accused-appellant before the Magistrate concerned having competent jurisdiction.
5. Case, being exclusively triable by Court of Sessions, was committed to Session Court which came to be transferred to the concerned Court who framed charges against the accused-appellant to which he pleaded not guilty and claimed to be tried.
6. In order to substantiate its case, prosecution examined as many as five witnesses, out of whom PW-1, P.W. 2 and P.W.-3 are the witnesses of fact and rest are formal witnesses.
7. On closure of prosecution evidence statement of accused-appellant under Section 313 Cr.P.C. was recorded by Court explaining entire evidence and incriminating circumstances against him. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication due to earlier rivalry with Tahir (not examined) over the money transaction but he led no evidence in defence.
8. Trial court, on appreciation of entire evidence on record, found the accused-appellant guilty and convicted and sentenced him as stated above.
9. I have heard Sri Rajesh Kumar Mishra, learned Amicus Curiae for the accused-appellant, learned AGA for the State at length and perused the record.
10. Now, I examine the statement of witnesses and other evidence.
11. P.W.-1 Shamshad Husain, who is the informant of the case but not eye witness of the incident. He deposed in his statement that on being told by victim and witnesses, he received information about the incident and he has filed the F.I.R. as per their information. Since, this witness is not eye of the incident, hence close scrutiny of his deposition is not necessary.
12. P.W.-2 victim / prosecutrix, supporting the prosecution case, deposed that she was aged about 9 years at the time of incident. It was 9:00 p.m. Her brother Shahjad after taking food went to visit but he did not come back till late. She went towards town hall to trace him. When she was returning to her home and reached near the shop of Biscuit, accused person caught her hand and took her to Mazar. When she tried to shout, accused-appellant pressed her mouth by his hand and threatened her to beat. He took her near Mazar and untied her Salwar, made her to lie on the earth and threw his underwear and paijama. Accused-appellant tried to rape her. When she shouted, Tahir Hussain Khan and Rakesh Singh arrived there with torches and apprehended the accused-appellant. Her brother Shamshad also arrived there, she narrated entire occurrence to her brother and witnesses. Her brother took the accused-appellant and her to police station along with witnesses. On being asked by witnesses, accused-appellant disclosed his name as Mustakeem. In her cross-examination made from the side of accused-appellant, prosecutrix repeated the incident. She further states that accused caught and dragged her. When she shouted, accused pressed her mouth. While untying her salwar and throwing his underwear and paijama, accused-appellant kept on putting his hand on her mouth. Prosecutrix / witness withstood lengthy cross-examination but nothing could be brought in his statement so as to disbelieve testimonial statement. Learned counsel for the appellant could not point out any infirmity, so as to blemish her statement.
13. P.W.-3 Rakesh Singh, eye witness, deposed that on the fateful night at about 9:00 p.m., he was standing outside of his house. As he heard the scream of one girl, he and one Tahir Hussain Khan rushed there, Tahir was having torch. He lighted and in the light of torch, they saw that girl was lying on the earth and accused was trying to commit rape her. They apprehended the accused on spot and asked his whereabouts whereupon he disclosed his name as Mustakeem. Both were dressed and taken to Theki. On being questioned, victim told that she was taken by accused pressing her mouth. Thus, witness was lengthy cross-examined by accused side but nothing could be brought on record so as to disbelieve his statement, it appears that witness did not know the accused from before. It has come in the evidence that on being asked accused disclosed his identity as Mustakeem. Since, the accused-appellant was not known with the witnesses, thus it is unlikely that witnesses falsely implicate the accused.
14. P.W-4 and P.W-5 are the formal witnesses. P.W.-4 registered the F.I.R. on the basis of written tehrir Ex.Ka-1 and P.W.-5 is the Investigating Officer, who conducted the investigation finding evidence and filed charge sheet against the accused-appellant.
15. At the outset, it is required to be noted that in the present case, the prosecutrix has fully supported the case of the prosecution. She has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination, she has stood by what she has stated and has fully supported the case of the prosecution. I see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. The submission on behalf of the accused that no other independent witnesses have been examined and/or supported the case of the prosecution and the conviction on the basis of the sole testimony of the prosecutrix cannot be sustained is concerned, the aforesaid has no substance.
16. In the case of Ganesan V. State (2020) 10 SCC 573, Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix.
17. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness.
18. In State of Punjab v. Gurmit Singh (State of Punjab v. Gurmit Singh, (1996) 2 SCC 384), Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof.
19. In State of Orissa v. Thakara Besra (State of Orissa v. Thakara Besra, (2002) 9 SCC 86), Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non- xamination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
20. In State of H.P. v. Raghubir Singh (State of H.P. v. Raghubir Singh, (1993) 2 SCC 622), Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54].
21. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
22. In Krishan Kumar Malik v. State of Haryana (Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130), it is observed and held by Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
23. In the case of State (NCT of Delhi) vs. Pankaj Chaudhary, (2019) 11 SCC 575, it is observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it is observed and held as under:
"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30]."
24. In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, it is observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.
25. Applying the law laid down in the aforesaid decisions to the facts of the case in hand and as observed hereinabove, I see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained.
26. Now so far as the submission on behalf of the accused that as there were no external or internal injuries found on the body of the prosecutrix and therefore it may be a case of consent is concerned, the aforesaid has no substance at all. No such question was asked, even remotely, to the prosecutrix in her cross-examination.Therefore, the aforesaid submission is to be rejected outright.
27. After considering the facts and circumstances evidence adduced in trial court, I find that trial court after appreciating the evidence rightly found the accused-appellant guilty. I find no reason to take a different view than that of trial court.
28. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The conviction and sentence awarded to the accused - appellant herein herein for the offence under Section 376/511 IPC is hereby confirmed.
29. Accused-appellant shall surrender within 15 days before the trial court concerned to serve out the remaining sentence. He shall be entitled to get the benefit Section 428 Cr.P.C.
30. Before parting we provide that Sri Rajesh Kumar Mishra, learned Amicus Curiae for appellant who assisted the Court very diligently, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to him without any delay and, in any case, within one month from the date of receipt of copy of this judgement.
31. Office is directed to transmit copy of this judgement along with trial court record to the court concerned through District Judge.
Order Date :- 06.01.2022 Manoj