Allahabad High Court
Bhurdal @ Guddu vs State Of U.P. on 10 May, 2016
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved AFR Case :- CRIMINAL APPEAL No. - 197 of 2012 Appellant :- Bhurdul @ Guddu Respondent :- State Of U.P. Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Dheeraj Srivastava, learned counsel and amicus curiae for the appellant and Sri S.A.M. Zaidi, learned AGA for the State and perused the record.
The instant jail appeal has been preferred at the instance of the appellant Bhurdul @ Guddu from jail through Senior Superintendent, District Jail, Faizabad vide letter dated 18th January, 2012 against judgment and order of conviction dated 23.12.2011 passed by Additional Sessions Judge, court no.2, Faizabad in S.T. No.145 of 2010, State of U.P. Versus Vs. Bhurdul @ Guddu, under Sections 376, 377, 506 IPC arising out of Case Crime No.857 of 2008, P.S. Gosaiganj, District Faizabad, whereby the appellant has been convicted and sentenced to undergo ten years rigorous imprisonment with a fine of Rs.10,000/- under Section 377 IPC, in case of default, the appellant will have to suffer one year additional rigorous imprisonment and five years rigorous imprisonment under Section 504 (II) IPC. All the sentences shall run concurrently.
Factual matrix of the case, as discernible from the record appears to be; that the first informant Smt. Itwari wife of Buddhiram Vishkarma, resident of village Sherwa (Sujanpur), Police Station Gosaiganj, District Faizabad moved a written report dated 01.11.2008 addressed to Senior Superintendent of Police, Faizabad, for lodging of the first information stating therein that Bhurdul @ Guddu son of Chhangur Singh, resident of the same village, along with one person took away her daughter (victim) aged about 7 years in the night of 26.10.2008, outside of the village towards southern side bamboo-groove and committed gang rape on her. They also threatened her daughter that in case, she told about the incident to any person, she will be killed. The victim came back home and in the morning when first informant saw blood stained clothes of her daughter, then she enquired from her, whereupon, she told that Bhurdul @ Guddu had taken her away to bamboo-groove where he committed rape on her. When she tried to raise alarm, her mouth was gagged by the appellant and he threatened her not to tell anyone about the incident otherwise she will be killed.
The first informant went to lodge the first information report at police station Gosaiganj on 27.10.2008 where the police personnel took blood stained clothes of her daughter and kept the same with them and told that they are going to get her daughter medically examined. In the evening informant's daughter was left back home. The first informant visited the police station time and again but neither first information report was lodged nor action taken.
Compelled by circumstances, the first informant moved application before S.S.P. Faizabad, for registration of the first information report as the accused was threatening that in case any report is lodged then she will be killed. The blood is still oozing out from private part of her daughter. The first Informant's husband has gone out to Delhi for earning livelihood. The first informant resides in her house along with her children. Report be lodged and action be taken.
This report was endorsed by Superintendent of Police Rural Areas (S.P.R.A.), Faizabad, whereupon the matter was looked into and S.O. concerned was directed for lodging of FIR, therefore, first information report was taken down at the police station Gosaiganj on 1.11.2008 at Crime No. Nil of 2008, under Sections 376, 377, 506 IPC. Later on, vide report no.14 of General Diary dated 2.11.2008, case crime number was allotted as 857 of 2008, under Sections 376, 377, 506 IPC at Police Station Gosaiganj. The written report is Exhibit Ka-1. The Check FIR is Exhibit Ka-7. Relevant GD entry was made and initially the case was registered at Police Station Mahila Thana, District Faizabad on 1.11.2008. Copy of GD entry is Exhibit Ka-8. Copy of relevant GD dated 2.11.2008 by which case crime number was allotted is Exhibit Ka-9.
The victim was medically examined at District Women Hospital, Faizabad on 1.11.2008 at 6.25 p.m. On external examination:- no injury was seen on any part of body or genitalia externally. Faecal matter seen coming out through Anus. Faecal in continuance since 27.10.2008.
On internal examination:- Hymen intact. No vaginal smear taken. The victim was referred to Surgeon, District Hospital, Faizabad for rectal examination. This medical examination report is Exhibit Ka-6.
Record reveals that the victim was referred to Surgeon District Hospital, Faizabad, as per Exhibit Ka-3, on 1.11.2008.
In pursuance of the above reference, rectal examination of victim was done on 3.11.2008 by Dr. Hari Om Srivastava, District Hospital, Faizabad who reported that healed scar present at muco ceratium junction of anal carnal at 6.00 O' clock, 9.00 O' clock at 2.00 O' clock position. Anal sphincter is lax, admits two fingers easily, faecal matter is coming out spontaneously. Injury is grievous caused by hard and blunt object. Duration about one week.
It is also gathered from record that during course of investigation, the Investigating Officer recorded statement of witnesses and took into possession blood stained clothes of victim and prepared memo of the same (Exhibit Ka-2). The aforesaid clothes were sent to Forensic Science Laboratory, Faizabad, for chemical examination, whereupon human blood and semen were found on the 'frock' of the victim. The report of Forensic Science Laboratory, Faizabad, dated 3.2.2009 is Exhibit Ka-5 on record.
The Investigating Officer prepared site plan of the incident, which is Exhibit Ka-10 and made GD entry at Report No.21 on 08.11.2008 (Exhibit Ka-11) relating to details of blood stained clothes of the victim. Radiological report about age of the victim dated 5.11.2008 is Exhibit Ka-12, wherein the age of the victim has been assessed about 7 years.
After completing formalities, the Investigating Officer filed charge-sheet against the appellant under Sections 377, 506 IPC at Case Crime No.857 of 2008, which is Exhibit Ka-4 on record. The case was committed to the court of Sessions from where the case was made over for trial to the concerned trial court. Appellant was heard on the point of charge and prima facie ground was found existing for framing charge under Section 376(g) IPC and 506 IPC. Charges were read over and explained to the accused, who denied the charges and opted for trial.
In order to prove its case, the prosecution produced as many as nine witnesses. The brief reference of the same is as follows:-
Smt. Itwari P.W.1 is the first informant and she has proved the written report, Exhibit Ka-1. The victim is P.W.2. Dr. Hari Om Srivastava is P.W.3 who has conducted rectal examination of the victim on reference being made by the lady doctor. He has proved rectal examination report, Exhibit Ka-3. S.I. Manager Yadav P.W.4 is Investigating Officer and has proved the various steps taken by him during investigation. He has proved the filing of charge-sheet, Exhibit Ka-4 and the Forensic Science Labrotary Report, Exhibit Ka-5. Dr. Arvind Kumar Singh P.W.5 has prepared the medical report and has proved the same as Exhibit Ka-6. Constable Mohirr Surendra Kumar Singh is P.W.6. He has proved original Check FIR Ka-7 and made relevant GD entry by which the case was registered which is Exhibit Ka-8 on record. Constable Mohirr Chhangu Ram is P.W.7. He has proved relevant GD entry and allotment of Criminal Case No.857 of 2008 (Exhibit Ka-9). S.I. R.D. Yadav is P.W.8. He is the Investigating Officer and he has proved memo of blood stained clothes Exhibit Ka-2, site plan Exhibit Ka-10, besides recording statement of witnesses Exhibit Ka-11 etc. Dr. Lal Mani is P.W.9. He has prepared radiological report and has opined that victim was aged 7 years and he has proved this report- Exhibit Ka-12.
Thereafter evidence for the prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C. He stated that he is the only issue of his parents. Ashok Singh of the village is abhorrent towards his father. He used to threaten his father and his father is residing in the house of Inder Singh being scared of threat extended by Ashok Singh. Defence though wished to adduced testimony did not lead any testimony as such.
The learned trial court after hearing the parties, appraisal of the evidence on record and considering the facts and circumstances of the case, passed the impugned judgment of conviction and imposed the aforesaid sentence upon the appellant.
Consequently, this appeal.
Learned counsel for the appellant submitted that in this case, the appellant has been involved only on account of enmity with one villager Ashok Singh in whose house the first informant has been working as maid-servant and she at the instance of Ashok Singh has made false allegations against the appellant. No such incident has ever taken place. The prosecution witnesses are not worthy of credit.
P.W.1 Smt. Itwari being mother of the victim is highly inimical towards the appellant. FIR is anti-timed and highly delayed. No proper explanation for delay has been given by the prosecution. The entire testimony on record creates doubt on the happening of the occurrence. There was no occasion for the appellant to commit the crime. The witnesses of fact have given contradictory description of incident.
Learned AGA has replied to the aforesaid arguments by submitting that in this case, the allegations are very much corroborated by medical testimony and injury on the anus of the victim is self speaking. Even the opinion of the doctor on the point is clinching and corroborating version of the victim. The victim being girl of 7 years old has no motive to falsely implicate the appellant. The evidence of witnesses of fact corroborates each other in material particulars. The Investigating Officer has also collected credible evidence during investigation and has rightly filed charge-sheet against the appellant. The judgment and order of conviction passed by the trial court is consistent and based on reasonable finding.
Considered the rival submissions also.
After considering the above rival submissions and the allegations so made in the first information report and the evidence on record, the core consideration that arises for determination in this appeal relates to fact as to whether the prosecution has been able to prove guilt of the accused beyond reasonable doubt? Whether the testimony of prosecution witnesses of fact is contradictory to each other in material particulars and the same is not reliable?
At the very outset, perusal of the written report, Exhibit Ka-1, reveals that allegations have been made against the appellant and one more person for committing crime of rape on the victim aged about 7 years in the night of 26.10.2008 by taking her away forcibly to the lonely place in the night committed rape on her and thereafter the victim was left alone at a short distance from her house. The victim was also threatened with dire consequences. The victim narrated the incident to her mother Smt. Itwari P.W.1 who went to the police station on 27.10.2008 but her report was not lodged. Ultimately, she had to move an application before S.S.P. Faizabad on 1.11.2008, whereupon her report was lodged at police station Mahila Thana, District Faizabad, concerning police station Gosaiganj, District Faizabad on 1.11.2008. The written report is Exhibit Ka-1 and the same testimonial version has been given by Smt. Itwari- P.W.1 before the trial court.
It is obvious that the incident relates to the night intervening 26/27.10.2008. Till 1.11.2008 the first informant tried her level best that a report be lodged at the police station but police personnel at police station Gosaiganj showed laxity on their part and did not lodge the FIR and then only the mother of the victim had to move before the SSP, Faizabad for lodging FIR. Therefore, it is obvious that there is no inordinate delay in lodging of the FIR and the delay so caused cannot be said to be inordinate under the facts and circumstances as the same has been satisfactorily explained by the prosecution.
Now meritorial aspect of this case can be considered on the strength of evidence of the prosecution witnesses and circumstances on record. It is admitted fact that the first informant Itwari P.W.1 is not an eye-witness of the occurrence. She was told about the incident by the victim P.W.2 when she came back home from the place of the occurrence after the incident had taken place.
In this view of the matter, the Court has to be cautious about the testimony of victim regarding actual occurrence qua the medical testimony on record and its impact on prosecution case.
On careful perusal of testimony of victim (P.W.-2), it is reflected that the appellant in the company of another co-accused took away the victim from her house between 12 mid night to 1.00 a.m. near bushes where there was bamboo-groove, in between bushes and bamboo-groove, they committed rape on her. Specific testimony has come forth that the appellant committed rape from front and back side of the victim and she stated that blood oozed out and kept on oozing. After commission of the crime, she was threatened by the appellant that in case, she told about the incident to anyone at home she and her parents, brothers and sisters will not be spared. She has also detailed the manner in which rape was committed. She has stated that one person gagged her mouth while the other committed rape. After commission of the rape, the appellant took her half way down to her home and left her alone, from where she came to her house. She has also testified that her frock and underwear were soaked in blood. All these facts, as stated before trial court have been also stated by the victim to her mother when she came back home after the incident took place. Her mother (Smt. Itwari) P.W.1 took into her possession the blood stained frock and the underwear.
It has been testified by P.W.1 that she went to lodge the report at the police station Gosaiganj and told about the incident to Daroga Ji and showed him her blood stained clothes. At this Daroga Ji assured her that report will be lodged and her medical examination will be conducted but he took the victim on jeep and sent back home both of them. In the meanwhile, the appellant continued with threat of dire consequences. She has also testified that her husband, at that point of time, was away in Delhi for earning livelihood.
P.W.1 also testified that after her report was not lodged, she moved typed report before S.S.P. Faizabad on 1.11.2008 and on whose intervention only the report was first lodged at Police Station Mahila Thana District Faizabad under Sections 376, 377, 506 IPC. After lodging of the first information report, medical examination of victim was done at District Women Hospital, Faizabad. Upon perusal of medial examination report facts emerge out to the extent that on external examination on 1.11.2008 at 6.25 p.m. by Dr. Arbind Kumar Srivasatava, no injury was seen on any part of body or genitalia externally. Faecal matter seen coming out through Anus. Faecal in continuance since 27.10.2008.
On internal examination:- Hymen intact. No vaginal smear taken. The victim was referred to Surgeon, District Hospital, Faizabad for rectal examination. She was also referred to C.M.O. Faizabad for determination of age. This medical examination is Exhibit Ka-6.
Obviously, the age of the victim was stated to be 7 years and in the medical examination report, it was reported that breast was not developed, auxiliary hair, pubic hair were not present.
In pursuance of the aforesaid reference, for rectal examination and determination of age, the victim was further examined on 3.11.2008 by Dr. Hari Om Srivastava, District Hospital, Faizabad who reported that healed scar present at muco ceratium junction of anal carnal at 6.00 O' clock, 9.00 O' clock at 2.00 O' clock position. Anal sphincter is lax, admits two fingers easily, faecal matter is coming out spontaneously. Injury is grievous caused by hard and blunt object.
In the opinion of the doctor, injury is grievous caused by hard and blunt object. Duration about one week. This report has been satisfactorily proved by Dr. Hari Om Srivastava P.W.-3. He has specifically stated in his examination-in-chief that in case, penis is thrusted into anus then this sort of injury can be caused. He has also stated in his examination-in-chief that feacal matter was coming out from anus and anus admitted two fingures easily and lastly in the examination-in-chief, it has been clarified that these injuries on the person of the victim can be caused around 12 mid night upto 1.00 a.m. in the night of 26.10.2008. In cross-examination, it has been clarified that this doctor witness carried out only rectal examination and nothing more. He has virtually confirmed and dittoed his testimony as given in examination-in-chief. There is nothing adverse appearing in his cross-examination that may create any doubt on this rectal medical examination. This rectal medical examination (Exhibit Ka-3) has been proved by P.W.3.
Pertinent to note that on all specific assertion regarding the nature of injury, number of injury and likelihood of causing the injury, as stated in the examination-in-chief by the doctor witness (P.W.3), the same has not been put to least challenge by the defence and this way the injuries so caused on the anus of the victim virtually corroborates the version of the victim that rape was committed on her and this fact is virtually established in so far as rectal cohabitation is concerned. The version of the prosecutrix is supported and corroborated by the innocuous testimony of the doctor witness P.W.3 based on medical examination carried out by him.
Here in so far as the medical examination regarding assessment of age of the victim is concerned, it reflects that doctor Lal Mani P.W.9 has proved the age of the victim about 7 years on the basis of the Radiological Report Exhibit Ka-12 and the same is virtually admitted to the defence, as no challenge has been made to the claim of the prosecution that the victim was not of 7 years age. This report was based on radiological test of right wrist, right elbow and right shoulder. As per report, all epiphysis around wrist and elbow were found not fused. Auxiliary and pubic hair was not present. This report has no such relevance with the commission of offence so alleged because it pertains to only admitted fact of age of the victim. This report (Exhibit Ka-12), only relates to the claim of the prosecution that the victim is of tender age i.e. 7 years.
Testimony on record shows that blood stained clothes of the victim (frock and underwear) were taken into possession by the Investigating Officer, R.D. Yadav and memo of the same was prepared and proved as Exhibit Ka-2. The same were sent for chemical examination and report dated 03.02.2009 was obtained from Forensic Science Laboratory, Lucknow and the same has been proved as Exhibit Ka-5. This report shows presence of human blood and semen on frock of the victim. Thus medical testimony, (Exhibit Ka-3) gets further corroboration and there is no reason to disbelieve such factual aspect of this case. At this juncture, it has come in the testimony of Dr. Arbind Kumar Singh P.W.5 that he did not find any mark of injury on her private part (vagina) but all injuries were found on rectal part and faecal matter was coming out.
The Investigating Officer S.I. Manager Yadav P.W.8 has filed charge-sheet against the appellant under Sections 377, 506 IPC. The Investigating Officer has also proved various steps which he took for completing investigation. He has proved the place of occurrence as Exhibit Ka-10. He has been cross-examined wherein, he has stated that initially this report was registered at Mahila Thana on 1.11.2008 at 18.15 hours. Thereafter when the territorial jurisdiction was found to be within police station Gosaiganj, the case was transferred. Such testimony has also been given by Constable Chhangu Ram P.W.7. He has stated that initially no crime number was allotted to this incident after registration of FIR at Mahila Thana, Faizabad but as soon as the case was transferred to P.S. Gosaiganj, it was allotted Case Crime No. 857 of 2008, under Sections 377, 376, 506 IPC and relevant entry in that connection was made in general diary at Report No.14 at 8.10 a.m. on 2.11.2008.
In this view of the matter, it is obvious that the things have taken consistent shape and developed gradually, therefore, it cannot be said that someone is manufacturing or controlling the various situations of this case. It has been vehemently contended that one Ashok Kumar Singh of the same village was on inimical terms with the appellant because Ashok Kumar Singh had forcibly possessed his land and the appellant insisted for obtaining his property from Ashok Kumar Singh. Smt. Itwari P.W.1 was maid-servant in the house of Ashok Kumar Singh.
In the wake of above submissions, specific contention has been made that first informant acting in collusion with Ashok Kumar Singh has lodged false report against the appellant. In this view of the matter, it is obvious that first informant had nothing to do with the enmity of appellant with Ashok Kumar Singh and she cannot be expected to bring moral harassment to her innocent child, who is 7 years of age, by levelling such serious allegations. She could have instead involved herself as victim and could have made even graver charges than the present one.
The various aspects of this case are so juxtaposed that their positioning looks quite natural and the same cannot be said to be either manufactured or deliberated or outcome of any collusion. Things could have been better served against the appellant on the ground of enmity with Ashok Kumar Singh and the maid-servant of Ashok Kumar Singh, who is first informant of this case and she could have herself indulged in the episode and would have created herself an eye-witness of the incident but the very nature and the manner of the incident suggests that things happened in general way as alleged by the prosecution witness and particularly the testimony of prosecutrix is so innocuous, clinching and consistent, that by itself is sufficient to base conviction on such testimony, as it inspires confidence and is free from any apparent or inherent infirmity.
The testimony of prosecutrix finds full support and confirmation from medical examination as well as testimony of doctor and that particular testimony of doctor went unchallenged by the appellant. The appellant himself has directly admitted the occurrence by suggesting to the Investigating Officer that the offence in fact was not committed by the appellant but it was committed by someone else. Therefore, factum of occurrence is admitted to the appellant himself.
Now, it is up to the appellant to establish that fact by evidence or by circumstances but in the absence of any such effort by the appellant, this Court, on carefully perusal of testimony on record viz-a-viz circumstances of the case, does not find either any testimony or any circumstance in support of above suggestion made by the appellant to the Investigating Officer (P.W.4). The plea of FIR being ante-timed, cannot be sustained, for the reason that first informant has already narrated various development that took place between the occurrence and lodging of the FIR, which on careful analysis has been found to be reasonably explained by the first informant P.W.1.
It is cardinal principle of criminal jurisprudence that in the matter of offence concerning rape or sexual assault, testimony of prosecutrix, if appears to be clinching, consistent and inspiring confidence, then the same can be the sole basis of conviction of the offender. In the present case also, the testimony of the prosecutrix is consistent and inspiring confidence and her testimony is corroborated by the medical testimony on record and this corroboration is not partial but through and through establishing fact of rape to the hilt.
It can be summed up that learned trial court has considered entirety of the matter and the weight of evidence and after such consideration has justifiably recorded finding of conviction against the appellant under Sections 377 and 506 (II) IPC, the same finding is upheld in appeal.
The judgment and order of conviction dated 23.12.2011 passed by Additional Sessions Judge, court no.2, Faizabad in S.T. No.145 of 2010, State of U.P. Versus Vs. Bhurdul @ Guddu, under Sections 376, 377, 506 IPC arising out of Case Crime No.857 of 2008, P.S. Gosaiganj, District Faizabad, is hereby affirmed.
Consequently, this appeal being devoid of merit is hereby dismissed.
Appellant is in jail. He will serve out remaining part of the sentence as ordered by the learned trial court.
Let a copy of this order be certified to the learned trial court for its intimation and necessary follow-up action.
Dt: 10.05.2016 Rk/