Allahabad High Court
Zaheer vs State Of U.P. on 3 August, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED ON 12.07.2022 DELIVERED ON 03.08.2022 Court No. - 1 Case :- CRIMINAL APPEAL No. - 1100 of 2010 Appellant :- Zaheer Respondent :- State of U.P. Counsel for Appellant :- Mohammad Naseerullah,Ajai Sharma,Vimal Kumar Pandey Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
(Delivered by Hon'ble Ramesh Sinha, J.) (A) INTRODUCTION (1) Accused, Zaheer, was tried by the Additional District & Sessions Judge/Fast Track, Court No.3, Raebareli, in Sessions Trial No. 277 of 2001 : State Vs. Zaheer, arising out of Case Crime No. 16 of 2001, under Sections 376, 354 I.P.C. and Sections 3(1)(xii), 3(2)(v), 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Khero, District Raebareli.
(2) Vide judgment and order dated 05.03.2010, the Additional District & Sessions Judge/Fast Track, Court No.3, Raebareli, acquitted the accused, Zaheer, for the offence punishable under Section 3 (1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "S.C./S.T. Act") and convicted and sentenced him in the manner as stated hereinbelow :-
i. Under section 376 I.P.C. read with Section 3 (2) (v) of the S.C./S.T. Act to undergo life imprisonment and fine of Rs.10,000/-. In default of fine to undergo additional one year simple imprisonment;
ii. Under section 354 I.P.C. to undergo two years' R.I. and fine of Rs.2000/-. In default of fine to undergo additional two months simple imprisonment.
iii. Under section 3(1) (XI) of the S.C./S.T. Act to undergo six months' R.I. and fine of Rs.2000/-. In default of fine to undergo additional one month's simple imprisonment.
All the sentences were directed to run concurrently.
(3) Feeling aggrieved by his conviction and sentence by means of the aforesaid impugned order dated 05.03.2010, the convict/ appellant, Zaheer, has preferred the instant criminal appeal.
(4) In view of the judgments of the Apex Court in Bhupinder Sharma vs. State of Himachal Pradesh : (2003) 8 SCC 551 and Nipun Saxena and anothers vs. Union of India and others : 2018 SCC Online 2772, the name of the victim is not being mentioned. She is transcribed as victim 'x' in the judgment hereinafter.
(B) FACTUAL MATRIX (5) Shortly stated, the prosecution case runs as under :-
The informant P.W.1-Smt. Surja Devi was the resident of village Vasinpurwa, Jahripur Mirdaha, police station Khero, district Raebareli. Her grand-daughter, victim ''x', aged about 8 years was living with her. On 10.01.2001, her grand-daughter, victim ''x', went to graze the cow towards Khajuha pond situated in eastern side of the village and at about 05:00 p.m., Zaheer (convict/appellant), on finding her grand-daughter (victim ''x') alone, caught her; denuded her; and put his finger on her private part, however, she managed to return to home. She stated cryingly, about the incident to her (informant) and her family members about the aforesaid incident.
(6) Thereafter, informant P.W.1-Surja Devi got the FIR scribed from some person, who after scribing it read it over to her. She thereafter affixed her thumb impression on it. She then proceeded to Police Station Khero, District Raebareli and lodged it. On the basis of the aforesaid written report (Ext. Ka.1), an F.I.R. (Ext. Ka.8), bearing Case Crime No. 16 of 2001, under Sections 354 I.P.C. and Section 3 (1) (x) of the S.C./S.T. Act was registered on 10.01.2001, at 08:20 p.m. against the convict/appellant Zaheer at police station Khero, district Raebareli, which was situated at a distance of two kilometers from the place of the incident. A perusal of the F.I.R. shows that the facts mentioned in the preceding paragraph were stated therein.
(7) The investigation of the case was conducted by P.W.4-Awadhesh Saran, who, in his examination-in-chief, had deposed before the trial Court that on 10.01.2001, he was posted as Circle Officer, Lalganj. He conducted the investigation of the case. On 11.01.2001, he recorded the statement of Constable Abdul Kalam, informant P.W.1-Smt. Surja Devi, P.W.2-victim ''x', Smt. Hira Devi, Kalawati, Takhurdeen and had also inspected the place of occurrence. On 12.01.2001, he recorded the statement of accused Zaheer. On 13.01.2001, he copied the medical examination of victim ''x' in paper no. 3; recorded the statement of witnesses Raj Kumar, Kalludin Mohammad; and sent the sealed clothes of victim ''x' received from Dr. Rita Raman (P.W.3) for chemical examination. On 24.01.2001, he copied the pathological report in paper no.4. On 12.02.2001, as incriminating evidence was found against the accused Zaheer, he filed charge-sheet against him under Sections 354, 376 I.P.C. and Sections 3 (1) (xii) of the S.C./S.T. Act before the Court. He proved the site plan (Ext. Ka. 6) and charge-sheet (Ext. Ka.7). He also proved the chik F.I.R. written by Constable Moharrir Abdul Kalam as Ext. Ka.8.
In cross-examination, P.W.4- Awadhesh Saran had deposed before the trial Court that he recorded the statement of Surja Devi (P.W.1), Hira Devi and victim ''x' on 11.01.2001 at about 05:00 p.m. in their village. On that date, the victim ''x' was not admitted to any hospital. In the statement of victim ''x', ''penetrating his penis by the accused' was mentioned but it was not mentioned that the accused had penetrated. In the whole statement of victim ''x', the fact of penetration of penis even a little bit has not been mentioned. He further deposed that when the victim ''x', in her statement, stated that the accused started penetrating his penis inside her vagina, then, she shouted and after that victim ''x' had trouble in walking and blood was oozing out. In these circumstances, he added Section 376 I.P.C. He further deposed that in the statements of witnesses recorded under Section 161 Cr.P.C., no instance of rape has been made out. The victim ''x' had not stated in her statement that she was unconscious for half an hour. He denied that victim ''x' was unconscious for two days. He was not told by the victim ''x' that the accused had held her mouth by hand. He deposed that the victim ''x' did not come to the police station in the state of unconsciousness. On the said date, Hira, Surja Devi (informant) and victim ''x' came at the police station and on seeing the victim ''x', it transpired that there was no mark of scratch or grievous injuries on her person. He did not record the statement of other children who were grazing their animals on that day. He went to the place of occurrence on the next date i.e. on 11.01.2011 and he met with victim ''x'. He inspected the place of occurrence on the pointing out of victim ''x' and Hira Devi. He recorded the statement Surja Devi (P.W.1) twice. In the second statement, Surja Devi (P.W.1) declined the occurrence of rape with the victim ''x'. Hira Devi had also stated in her statement that victim ''x' did not tell her about occurrence of rape with her. He recorded the statement of victim ''x' at her house on 11.01.2011. He denied that he recorded the statement of the victim ''x' during her admission in hospital. He also denied that he developed a case of rape on the pressure of Village Pradhan even after no incident of rape occurred. He further deposed that he saw the medical report but he did not record the statement of doctor who conducted the medical examination of victim ''x'. In the report, no opinion of rape was mentioned.
(8) The medical examination of victim ''x' was conducted on 11.01.2001 at 05:15 p.m. in Women's Hospital, Raebareli by Dr. Reeta Raman (P.W.3), who found the following injuries on her (victim ''x') person :-
"Examination :- Height 47 inches, weight 20 kg. Teeth 12/12 space for molass present in upper and lower jaws. Child was having difficulty in walking. Auxiliary and pubic hair absent. Breast not yet started developing. No mark of injury present over the external surface of the body.
Internal Examination :- Redness and mild swelling present at 6 O'clock position of the hymen. Small tear at 6 O'clock position. No fresh bleeding, vagina admits tip of finger with extreme pain. Smear slid was made and sent to Pathologist District Hospital Raebareli for determination of any spermatozoa. There was no bleeding or discharge over her private parts. Her undergarments and a cloth was sealed and sent for forensic examination. For determination of her age, she is being sent to Radiologist District Hospital for X-ray of both elbow and wrist joint."
(9) It is significant to mention here that P.W.3-Dr. Reeta Raman had reiterated the aforesaid medical examination in her statement before the trial Court and had also stated that on receipt of report of x-ray and vaginal smear, she prepared a supplementary report on 18.01.2001. In the report No. 1/12.01.2001 of the vaginal smear, it has been mentioned that no sperm was present. After perusing the x-ray report, she opined that the victim ''x' was aged about 8 years and her injuries were 24 hours old and it was caused with blunt objects. She further deposed that injuries could be caused by penis. She further stated that if a person penetrates his penis in the vagina of the victim, then, the injuries could be attributable. She proved the medical report (Ext. Ka.2), supplementary report (Ext. Ka.3) and pathology report (Ext. Ka.5). She deposed that injuries could be attributable on 10.01.2001 at 05:00 p.m. In cross-examination, P.W.3 had deposed that there was no report with regard to rape in her report. She deposed that if any girl sat in the field for urinating and if the thooth ( one of the hard grass) of the field was blunt, then, these injuries could be attributable. The injuries could be attributable on 10.01.2001 in the afternoon and it could not occur in the morning. She further deposed that in this case, the Hymen was found torn and in the case of rape also, hymen is found torn.
(10) The evidence of P.W.5-Dr. D.K. Mishra shows that on 12.01.2001, he was posted as Radiologist in District Hospital, Raebareli. On the said date, he conducted the x-ray of victim ''x', who was brought by C.P.55 Shyma Devi of Police Line, Raebareli. He proved the x-ray report (Ext. Ka.10).
In cross-examination, P.W.5-Dr. D.K. Mishra had deposed that victim ''x' was referred by Dr. Reeta Raman (P.W.3) on 11.01.2001 for x-ray. On 12.01.2001, victim ''x' was brought before him for x-ray and he conducted the x-ray of the victim on 12.01.2001. The victim ''x' came before him in a good condition and she had no problem.
(11) The case was committed to the Court of Sessions in the usual manner where the convict/appellant was charged for the offences mentioned in paragraph-1 hereinabove., to which he pleaded not guilty and claimed to be tried.
(12) During trial, the prosecution in order to substantiate its case, examined five witnesses viz. informant P.W.1-Smt. Surja Devi, who is the maternal grand-mother of the victim ''x', P.W.2-victim ''x' herself, P.W.3-Dr. Reeta Raman, who conducted the medical examination of victim ''x', P.W.4-Awadhesh Saran, who conducted the investigation of the case and P.W.5-Dr. D.K. Mishra, who conducted the x-ray of the victim ''x'.
(13) P.W.1-Smt. Surja Devi, who is the informant of the case and maternal grand-mother of the victim ''x', had deposed in her examination-in-chief before the trial Court that she was an illiterate lady and she belongs to pasi community. At the time of the incident, her grand-daughter, victim ''x', aged about 8 years was living with her. On the date of the incident, at about 05:00 p.m., her grand-daughter, victim ''x', went to graze her cow towards Khajuha village situated in eastern side of her village, wherein accused Zaheer on finding her grand-daughter alone caught her; untied the string of her paijama; and started fingering her urethra which caused bleeding to her. When her grand-daughter started shouting, the convict/appellant fled away from there. When the cow reached home, she started looking for her grand-daughter from the house and she noticed that her grand-daughter (victim ''x') was limping. Thereafter, she picked up her grand daughter in lap and carried home from a distance of one furlong. Blood was oozing out from her private part. Her grand-daughter (victim ''x') told her about this incident in the house. She proved the written report (Ext. Ka. 1). She further deposed that after the incident, the police had interrogated her and also inspected the place of occurrence. The medical examination of her grand-daughter was conducted at Raebareli Hospital.
In cross-examination, P.W.1 had stated that she went to lodge the report at 07:00 p.m. as none of her family members were there on the date of the incident. She deposed that she knew Anwar Pradhan. Before fifteen days of the incident, the election of Pradhan was held, in which Anwar won the election and Israr lost the election. Accused Zahir was with Israr in the said election, whereas she supported Anwar. She further deposed that after the incident, she went to the house of Anwar Pradhan along with her grand-daughter victim ''x' but he did not extend any help.
P.W.1 had further deposed that the Inspector came for investigation. She did not show the place of occurrence to the Inspector. She was at home with her granddaughter (victim ''x'). The Inspector interrogated the people of her village in her presence but none of them had supported the incident. She did not ask from the children who also were grazing their animals along with her grand-daughter because the children fled away from there. Apart from these children, she did not inquire about the incident from any person of the village. She went to the place of the incident after 4-6 days of the incident. She further deposed that after lodging the report, she received the compensation from the Government.
(14) P.W.2-victim ''x', in her examination-in-chief, had deposed before the trial Court that her father had died earlier. She, while living in the house of her maternal grand-mother Surja Devi (P.W.1), was studying in Class-II at Khajuria Bodh Private School. The incident occurred eight years ago at 05:00 p.m. On that date, there was holiday in her school. She went for grazing cow towards pond situated in the eastern direction of her village, wherein Zaheer (convict/appellant) was also grazing his cow. She knew Zaheer prior to the incident as he used to visit her village usually. It was the time for the sun to set. Zaheer (convict/appellant), who sat on the med (boundary of the field), called her, upon which she went to him. Thereafter, first of all, Zaheer (convict/appellant) rubbed her cheeks; after that, untied her paijama's string; touched her urethra; and started fingering her urethra. Thereafter, Zaheer (convict/accused) removed her salwar and laid her inside the ditch adjacent to med (boundary of the field) and started penetrating his penis inside her urethera. She further deposed that when Zaheer started to penetrate his penis into her urethra, she felt lot of pain and blood was also oozing out, on which she started screaming. Her cow had also gone along with the cow of Zaheer (convict/appellant). She identified the convict/appellant Zaheer in Court and had stated that he was the person who committed rape on her. She went towards her house limping and when she reached near the village, she met her maternal grand-mother (P.W.1) and narrated the whole incident to her (grand-mother P.W.1) while crying, whereafter, her maternal grand-mother (P.W.1) carried her in lap. She identified the salwar (Ext. .2) which she wore on the date of the occurrence, in the trial Court. Zaheer (convict/appellant) had penetrated his penis to her urethra a little bit but when bleeding started, he fled away from there. Zaheer (convict/appellant) had committed bad things on finding her alone.
In cross-examination, P.W.2-victim ''x' had deposed before the trial Court that when she was aged about three years, her father died. Her grandmother had four daughters, namely, Ram Dulari, Ram Piyari, Hira and Kalawati. Her mother's name is Ram Piyari. After death of her father, her mother got married again but she did not know the person to whom she was married. She got unconscious after the incident for about one hour or half an hour. After an hour, when she gained consciousness, she went towards her house. When she walked a little bit, her mausi (aunt) came and carried her in lap. The place of the incident was at a distance of 3-4 bighas from her house. The place of the incident was in the eastern direction from her house. Her house was situated after 10-20 houses from the place of the incident. When she walked 2-3 steps, her mausi (aunt) came and when her mausi (aunt) met her, she was conscious. After the incident, she was brought to Raebareli Hospital for medical examination, wherein she was admitted for 2-3 days and her maternal grand-mother was along with her. Her treatment was going on.
(15) The statement of convict/appellant Zaheer was recorded under Section 313 Cr.P.C. In his statement, convict/appellant Zaheer had denied the allegations levelled against him and had stated that when victim ''x' went to collect cow dung, the cow kicked her, as a consequence of which, she fell down. He did not know where she sustained injuries. He further stated that Pradhan Anwar demanded Rs.5000/- from him but when he refused to do so, Anwar had falsely implicated him in the instant case. From the side of the convict/appellant, Furkan Khan and Kallu were examined as D.W.1 and D.W.2, respectively, by the trial Court.
(16) D.W.1 Furkan Khan, in his examination-in-chief, had stated that the alleged incident was about nine years old i.e. in the year 2001. Before fifteen days of the incident, the election of Gram Pradhan was held. Israr and Anwar were the candidates in the said election. In the said election, convict/appellant Zaheer was with Israr and was on the polling booth, Anwar had assaulted Zaheer and threatened him that after winning of election, he would be falsely implicated in a case. Surja Devi (P.W.1) was in support of Anwar. The said election of Pradhan was won by Anwar. Thereafter, Anwar, on account of enmity and with the connivance of police, had falsely implicated Zahir (convict/appellant) in the instant case. He and all the villagers knew that the injury caused to the victim ''x' was on account of either falling down getting hit by cow or because of sitting up straight in the field for easing herself. Zaheer (convict/appellant) was not on spot and the victim ''x' had also not stated in her statement at her house, village and police station that accused had tried to rape her.
In cross-examination, D.W.1 had stated that he knew that Surja Devi (P.W.1) had lodged report against Zaheer. The said report was scribed by Anwar, who was present there. He (D.W.1) was also present there and was standing outside. He denied that he had falsely deposed at the instance of convict/appellant Zaheer.
(17) D.W.2 Kallu, in his examination-in-chief, had deposed that the alleged incident was 9 years old. Before fifteen days of the incident, the election of Pradhan was held. Israr and Anwar were the candidates in the said election. Zaheer (convict/appellant) was in the support of Israr. On the date of the election, Anwar had assaulted Zaheer in his presence at polling station and threatened him that after winning of election, he would falsely implicate him in a case. Anwar won the election of Pradhan. Thereafter, on account of enmity and with the connivance of police, a false case had been lodged against the convict/appellant Zaheer at the instance of Anwar. The injury caused to victim ''x' was on account of falling down after being kicked by cow or sitting in the field for urinating. On the date of the incident, Zaheer was not present there.
(18) The learned trial Court believed the evidence of prosecution i.e. P.W.1-Smt. Surja Devi, P.W.2-victim ''x' as well as medical evidence and came to the conclusion that there was sufficient evidence warranting the conviction of the appellant for the offence punishable under sections 376 I.P.C. read with Section 3 (2) (v) of S.C/S.T. Act, Section 354 I.P.C. and Section 3 (1) (xi) of the S.C./S.T. Act and accordingly convicted and sentenced him thereunder by means of the impugned judgment and order dated 05.03.2010.
(19) Hence the instant appeal.
(C) ARGUMENTS (20) Heard Shri Vimal Kumar Pandey, learned Counsel for the convict/appellant, Shri Prabhat Adhaulia, learned Additional Government Advocate for the respondent/State and perused the lower Court record as well as impugned judgment and order dated 05.03.2010.
C.1. ARGUMENTS ON BEHALF OF THE CONVICT/ APPELLANT (21) While challenging the impugned judgment and order dated 05.03.2010, learned Counsel for the convict/appellant has argued :-
I. that Dr. Reeta Raman, who medically examined victim ''x' on the next day of the incident, did not give any opinion of rape committed against victim ''x' and further no semen was reported to be present in the seriologist report. He argued that in the F.I.R., which was lodged by the maternal grand-mother of the victim ''x' (P.W.1), it has been alleged that convict/appellant Zaheer had entered his finger into the private part of the victim ''x'. At that time, there was no allegation of rape upon the convict/appellant and as such, the F.I.R. against the appellant was lodged under Section 354 I.P.C. and Section 3 (1) (x) of S.C./S.T. Act. The victim ''x', for the first time, had stated before the trial Court that rape against her was committed by the appellant. He argued that in the F.I.R., P.W.1-Surja Devi had stated that victim ''x' had stated the whole factum of the incident to her while reaching home. Therefore, his submission is that if that being so, as to why P.W.1-Surja Devi had only mentioned in the F.I.R. that convict/appellant Zaheer had entered his finger in the private parts of the victim ''x', which itself shows that the prosecution had intentionally cooked up the story of rape committed against victim ''x'. Thus, the entire story of the prosecution is doubtful.
II. that no independent witnesses have been examined by the prosecution.
III. that the informant of the F.I.R. was maternal grand-mother of the victim ''x', namely, Surja Devi (P.W.1). She is not the eye-witness of the alleged incident. The F.I.R. of the incident lodged by P.W.1 is hearsay, therefore, allegations made against the convict/appellant by P.W.1 in the F.I.R. are frivolous one.
IV. that the trial Court materially erred in not believing the testimonies of D.W.1 and D.W.2, who categorically stated that on the date of the alleged incident, the convict/appellant was not present at the place of occurrence and further the injuries caused to the victim ''x' was on account of kicks of cow or may be due to squatting on the field for urinating. According to him, the convict/appellant has been falsely implicated in the instant case.
V. that P.W.3-Reeta Raman, who conducted medical examination, did not support the case of the prosecution that any rape was committed with victim ''x'. There was no allegation of rape against the appellant in the F.I.R.
VI. Thus, it is prayed to allow the present appeal.
C.2. ARGUMENTS ON BEHALF OF THE RESPONDENT/ STATE (22) Mr. Prabhat Adhaulia, learned Counsel for the respondent/State has vehemently opposed the aforesaid submissions of the learned Counsel for the convict/appellant and argued :-
I. that in the present case, the trial Court has rightly convicted the convict/appellant for the offence under Section 376 IPC read with Section 3 (2) (v) of the S.C./S.T. Act, Section 354 I.P.C. and Section 3 (1) (xi) of the S.C./S.T. Act by means of the impugned order on relying upon the testimony of prosecution witnesses.
II. that there is no reason to doubt the credibility and trustworthiness of the victim ''x'. He argued that victim ''x' was medically examined on next day of the incident. The victim ''x' is consistent in her evidence right from the very beginning and even in the cross-examination also she has stood by what she has stated and she has fully supported the case of the prosecution. Therefore, in the light of facts and circumstances of the case, the conviction of the appellant deserves to be confirmed.
III. that cogent reasons have been given by the learned trial Court for not believing the testimonies of D.W.1, D.W.2 as well as statement of the accused recorded under Section 313 Cr.P.C. It is specifically observed by the learned trial Court that depositions of D.W.1, D.W.2 and statement of the appellant recorded under Section 313 Cr.P.C. does not inspire any confidence.
IV. Thus, the present appeal is liable to be dismissed.
D. ANALYSIS (23) We have examined the submissions of the learned counsel for the respective parties at length and gone through the impugned judgment and order of conviction passed by the learned trial Court as well as lower Court record.
(24) The F.I.R. of the incident was promptly lodged. The incident occurred on 10.01.2001 at 05:00 p.m. and the F.I.R. was lodged by P.W.1-Smt. Surja Devi, maternal grand-mother of the victim ''x', on 10.01.2001 at 08.20 p.m. The distance between the police station Khero, district Raebareli and place of occurrence was two kilometers.
(25) The evidence of the informant Smt. Surja Devi (P.W.1) shows that on 10.01.2001, her grand-daughter, victim ''x', aged about 8 years, went to graze cow at Khajuha village situated in eastern side of her village, wherein her grand-daughter (victim ''x') met with Zaheer (convict/appellant). Thereafter, Zaheer caught her; untied string of her pajama; and started fingering on her private part, upon which blood was oozing out from her private part. After that on her shouting, convict/appellant ran away. She further stated that when her grand-daughter was coming home, she saw her grand-daughter limping, thereupon she carried her in lap and went to the house and at that time, blood was oozing out from her private part. After that, her grand-daughter narrated the whole incident to her.
(26) The aforesaid testimonies of P.W.1-Smt. Surja Devi were supported by P.W.2-victim ''x' and in her statement before the trial Court, P.W.2-victim ''x' had deposed that she knew Zaheer (convict/appellant) before the incident as he came to his village usually. On the date of the incident, she went to graze the cow near the pond situated in the eastern side of the village, where Zaheer (convict/appellant) was also grazing his cow. It was the time for the sun to set. Zahir (convict/appellant), who sat on med (boundary of the field), called her, upon which she went there. After that, Zaheer (convict/appellant) rubbed her cheeks; untied string of her paijama; touched her urethra; and started fingering in her urethra. Thereafter, Zaheer (convict/appellant) removed her salwar and laid her inside the ditch adjacent to med (boundary of the field) and started penetrating his penis inside her urethera, upon which she felt lot of pain and blood was also oozing out. She, thereafter, shouted, whereupon Zahir fled away. After that she went to the house limping and when she about to reach near the house, her maternal grand-mother (P.W.1) met her, then, she narrated the whole incident to her maternal grand-mother while crying, then, her maternal grand-mother carried her in lap and went to her house.
(27) In our opinion, the evidence of PW-1 Smt. Surja Devi and P.W.2-victim ''x' inspire confidence and reliance can be placed on it. There are no major discrepancies in their evidence. They have stood the test of cross-examination very well.
(28) The report of medical examination (Ext. Ka.2) shows that the medical examination of the victim ''x' was conducted on the next date of the incident i.e. on 11.01.2001 at 05:15 p.m. at Women's Hospital, Raebareli by Dr. Reeta Raman (P.W.3), who, after examination of victim ''x', has opined that victim ''x' was having difficulty in walking; redness and mild swelling present at 6 O'clock position of hymen; small tear at 6 O'clock position; no fresh bleeding; and vagina admits tip of finger with extreme pain. The evidence of P.W.3-Dr. Reeta Raman shows that the injuries sustained by the victim ''x' was 24 hours old and it could be caused by blunt object. She had further deposed that injuries could be caused by penis and if anyone penetrating his penis to the vagina of the victim, these injuries could be attributable. However, P.W.3 had deposed in cross-examination that there is no report of rape in her report. She further deposed that if any girl sits for urinating in the field and grass of the field is blunt, then, these injuries could be caused. She further stated in cross-examination that injuries could be attributable on 10.01.2001 in the afternoon and it was not in the morning. The hymen was torn and hymen may be torned in the case of rape. However, the report of the Forensic Laboratory (Paper No.25 Ka) shows that no semen was found in the vaginal swab. However, human blood was found on the salwar of the victim ''x'.
(29) Learned Counsel for the convict/appellant, therefore, has contended that Dr. Reeta Raman, who medically examined victim ''x' on the next date of the incident, did not find any rape committed against victim ''x' and further as per forensic report, no semen was present, hence the prosecution case of rape committed against the victim ''x' is doubtful.
(30) At this juncture, it would be apt to mention that in Santosh Kumar vs. State of M.P. : 2006 (8) JT SC 171, the Apex Court has held that :
"10. The question, which arises for consideration, is whether the proved facts establish the offence of rape. It is not necessary for us to refer to various authorities as the said question has been examined in considerable detail in Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204 and paras 37 to 39 of the said judgment are being reproduced below:
37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads thus:
"Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
38. In Parikhs Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".......even slight penetration is sufficient and emission is unnecessary. "
11. The medical examination report of the victim shows that she received injuries on front portion of the body and also on her hands.
12. The mere fact that no injuries were found on private parts of her body cannot be a ground to hold that no rape was committed upon her or that the entire prosecution story is false. It may be noted that Halki Bai is a married grown up lady and in such circumstances the absence of injuries on her private parts is not of much significance."
(Emphasis supplied) (31) In the instant case, the medical examination of the victim ''x' (Ext. Ka. 2) shows redness and mild swelling present at 6 O'clock position of the hymen; small tear at 6 O'clock position; and vagina admits tip of finger with extreme pain. At the same time, it also transpires from the medical report that victim ''x' was having difficulty in walking, which also finds corroboration with the evidence of victim ''x' (P.W.2) as well as P.W.1 as they had stated in clear terms that after committing rape against the victim ''x', she went to home limping. Further, P.W.3-Reeta Raman had stated in her cross-examination that hymen of the victim ''x' was torn and hymen would also be torn in the case of rape.
(32) Keeping in mind the aforesaid medical evidence on record, this Court now proceed to consider the evidence of the victim ''x'. The victim ''x' is very clear in her statement recorded before the trial Court regarding her rape committed by the convict/appellant. It is apparent from the testimonies of P.W.2-victim ''x' that the victim ''x' has fully supported the case of the prosecution. She has been consistent right from the very beginning. Nothing has been specifically pointed out why her testimony 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. This Court finds no reason to doubt the credibility and/or trustworthiness of the victim ''x'. We may also mention that both of them i.e. P.W.1 and P.W.2 had no rancour or ill-will against the convict/appellant Zaheer and in this view of the matter would not have falsely deposed against him. This circumstance unmistakenly shows that whatever happened to victim ''x' on 10.01.2001 at 05:00 p.m., the convict/appellant was solely responsible.
(33) Learned counsel for the appellant strenuously urged that since Dr. Reeta Raman (P.W.3) stated in her deposition that the injuries suffered by victim ''x' were a result of a blunt object, which may be caused if a girl sat for urinating in the field where hard remains of the crops were there, hence the convict/ appellant deserves the benefit of doubt.
(34) We have examined the aforesaid submissions of the learned Counsel for the appellant and are of the view that this submission of the learned counsel for the appellant is not worthy of acceptance. It is pertinent to mention that Dr. Reeta Raman (P.W.3) admits of the possibility of the injuries caused from sitting for urinating on a blunt grass in the field. At the same time, she also admits of the possibility that it could be a result of a hard and blunt object including insertion of penis. Since both the possibilities are there, in our view, the crucial evidence would be that of P.W.2-victim ''x'. Her evidence, which has been discussed by this Court hereinabove, clearly shows that rape was committed by the convict/appellant on 10.01.2001 at 05:00 p.m. Moreso, it transpires from the injuries of victim ''x' that it was caused while the convict/appellant was raping her.
(35) So far as the submission on behalf of the convict/appellant that no other independent witnesses have been examined and/or supported the case of the prosecution and the conviction on the basis of the testimonies of P.W.1-Surja Devi, who happened to be maternal grand-mother of the victim ''x' and interested and partisan witness as well as testimony of P.W.2-victim ''x' cannot be sustained, is concerned, the same has no substance. In State of Punjab v. Gurmit Singh : (1996) 2 SCC 384, the Apex 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 Apex 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.
(36) Now so far as the submission on behalf of the convict/appellant that the learned trial Court erred in not believing DW1, DW2 and erred in not accepting the defence is concerned, at the outset, it is required to be noted that cogent reasons have been given by the learned trial Court not to believe DW1, DW2 and not to believe the statement of the appellant. On due consideration, this Court is of the view that the learned trial Court has rightly disbelieved the statement made by the convict/appellant under Section 313 Cr.P.C. and has rightly disbelieved DW1 and DW2.
(E) CONCLUSION (37) In view of the above and for the reasons stated hereinabove, the present criminal appeal fails and the same deserves to be dismissed and is accordingly dismissed. The conviction and sentence awarded to the convict/appellant Zaheer by means of the impugned order dated 05.03.2010 is hereby confirmed.
(38) The convict/appellant Zaheer, who is in jail, shall serve the sentence as awarded by the trial Court by means of the impugned judgment and order dated 05.03.2010.
(39) Let a certified copy of this order as well as Lower Court Record be transmitted to the Court concerned for necessary information and compliance forthwith.
[Mrs. Saroj Yadav, J.] [Ramesh Sinha, J.]
Order Date :- 03.08.2022
Ajit/-