Ashok Kumar & Others vs State Of U.P.
2012 Latest Caselaw 1467 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 84 of 1990
 

 
Petitioner :- Ashok Kumar & Others
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Arun Sinha,Akshaya Katiyar,Dilip Kumar Gautam,Dinesh Kumar Mishra,Rakesh Kumar Verma,Suresh Kumar Mishra
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

1. Heard learned counsel for the appellants Sri Sudhir Kumar Singh, Sri D.P. Upadhyaya and the learned Additional Government Advocate for the respondent.

2. By means of this appeal the appellants (Ashok Kumar, Ram Deen & Ramesh Kahar) have challenged the judgment dated 19.1.1990, passed by Vth Additional Sessions Judge, Unnao , in Session Trial No. 401 of 1989, in the case of ' State vs. Ashok Kumar & others' under Section 376 I.P.C., Police Station Asoha, District Unnao, whereby the learned trial court convicted the appellants for the offence under Section 376 (2) I.P.C. and each of the appellants was sentenced to undergo rigorous imprisonment for a period of 10 years.

3. In brief, facts of the case are that the complainant P.W.-1 (hereinafter referred to as 'Victim') is a married girl aged about 18 years. Her parental village is Mangataiya, police station Mohanlalganj, district Lucknow and she was married in village Indaura, police station Morawan, district Unnao. On 29.6.1989 one Shyam Lal who belongs to the caste of the complainant and as per the caste relations happens to be her uncle came to village Indaura to invite Ramswaroop. Shyam Lal also visited the house of the victim and from there he had to go back to village Mangtaiya. Since the marriage of the cousin of the victim was to be solemnized on 30.6.1989, therefore, she requested Shyam Lal to took her to the village Mangtaiya with him because there was no male member in her house. Shyam Lal accepted her request and she along with her daughter Renu, aged about two and half years, went with Shyam Lal. When these persons reached village Khajha at about 8.00 p.m. near the bank of river 'Sai', Shyam Lal called the boatman because boat was on the other side of the river. Meanwhile Ashok Kumar resident of village Mangataiya and Ram Deen, resident of village Bairi and Ramesh Kahar of village Nagram reached there and and these persons forcibly took the victim towards the 'Babool tree' when the victim made effort to raise alarm then Ashok Kumar gagged her mouth. Her uncle Shyam Lal also made effort to raise alarm,but the appellants threatened him with dire consequences because of which he could not resist. Accused-appellant Ashok Kumar grounded the victim and committed rape with her. After satisfying his lust, the other accused Ram Deen committed rape with her. Thereafter Ramesh Kahar also committed rape with the victim. On raising alarm by Shyam Lal and the victim, Rajesh Kumar alias Raju Pandit, Rampal kahar and several other persons of village Khajuha reached there. The accused persons made an effort to make good their escape but the villagers who reached there apprehended all the accused appellants while they were making an effort to run away by crossing the river. Victim, Shyam Lal and all the three accused/appellants remained in village Khaujha in the night. Information was given to the police outpost. In the morning two constables reached there. Then victim along with accused persons went to the police station and gave his report as Ext. K-1 which was scribed by his uncle Shiva Naiyae on her dictation.

4. On the basis of this report case crime no. 55 of 1989 under Section 376 (g) was registered and chik report Ext. Ka-8 and G.D. Ext. Ka-9 were prepared. Investigating Officer took the petticoat of the victim, which had white spots, in custody, prepared its memo Ext. Ka-2, Torches of witnesses were also taken into custody, its memo is Ext. Ka-5, site plan Ext. Ka 6 was prepared. Victim was got medically examined and after completion of investigation, charge sheet Ext. Ka 7 was filed.

5. In order to prove its case prosecution examined P.W.-1 complainant/victim, P.W.-2 Shiva, Scribe of the First Information Report, P.W.-3 Dr. Suman Mishra who medically examined the victim, P.W.-4 Shyam Lal, eye witness of this occurrence, P.W.-5 Rajesh Kumar @ Raju Pandit, who along with other persons had seen the occurrence and apprehended the appellants on the place of occurrence and before this witness appellants made extra judicial confession of their guilt. P.W.-6 is Chandra Bhan Singh, Investigating Officer.

6. Case of the defense is that they have been falsely implicated in this case because of enmity. No defense evidence was produced on behalf of the appellants during trial. Learned trial court on the basis of the evidence available on record convicted the appellants, as above, hence this appeal.

7. It is argued by learned counsel for the appellants that in this case evidence of the victim was not corroborated by the medical evidence. In her evidence she had stated that she became unconscious, therefore, she could not have narrated the entire story. It is further submitted that the accused persons were not medically examined and learned trial court, in absence of Forensic Science Laboratory report, regarding examination of the 'petticoat' of the victim which was taken in custody during investigation has decided the case, hence the finding of the trial Court is unsustainable. In the alternative, it is submitted that the appellants have already served out more than 8 years of sentence, therefore, taking a lenient view, they may be sentenced to the period already undergone by them and be released accordingly.

8. Argument of the learned Additional Government Advocate is that in this case there is not only the evidence of the prosecutrix but there is direct eye witness account of the incident by P.W.-4 Shyam Lal and also of P.W.-5 Rajesh Kumar alias Raju Pandit who has seen some part of the occurrence. It is further submitted that Rajesh Kumar is the person who was among the persons who apprehended the appellants while they were making effort to flee away from the place of occurrence. It is further submitted that all the appellants made extra judicial confession of their guilt before this witness. P.W.-5 Rajesh Kumar is absolutely an independent witness who is resident of a different village and is not connected with the appellant or with the complainant in any manner. It is submitted next that if the fact is established by a substantive evidence then mere absence of the F.S.L. Report regarding the stains of the petticoat is of no value. Learned trial court has appreciated the evidence in correct perspective and has rightly convicted the appellants.

9. It is true that in this case the victim has fully supported the prosecution story which finds full support by the evidence of P.W.-4 Shyam Lal and also by P.W.-5 Rajesh Kumar. Before proceeding further to test the arguments of the rival parties, it is desirable to mention as to what value should be attached to the evidence of prosecutrix in cases of this nature. Hon'ble Apex Court in the case of Mohd. Imran Khan vs. State (Govt. Of NCT of Delhi ) reported in 2012 CriLJ 693. following the views expressed in some earlier cases, has held as under:-

" It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `Evidence Act'), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts 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-examination 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."(State of Maharashtra v. Chandraprakash Kwealchand Jain reported in AIR 1990 SC 658; State of U.P. v. Pappu @ Yunus and Anr. Reported in AIR 2005 SC 1248 and Vijay @ Chinee v. State of M.P. In 2010 8 SCC 191)

10. Hon'ble Apex Court in the case of Sardul Singh vs. State of Haryana reported in (2002) 8 SCC 372 has held that there cannot be a prosecution case with cast iron perfection in all respect.

11. In the case of Bhag Singh vs. State of Punjab reported in 1998 SCCrR 101 Hon'ble Apex Court has discussed how the evidence should be evaluated. Relevant part of the judgment is as under :-

" It is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if they speak to all events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eye witness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvass of his mind in the sequences in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequences as it registered in his mind the testimony cannot be dubbed as artificial on that score alone."

12.Argument of the learned counsel for the appellants is that there are some contradictions in the evidence of P.W.-1, she has stated in her cross examination that she became unconscious while Ashok Kumar was committing rape with her. Therefore, she had not seen whether other accused persons committed rape with her or not. This point was also raised before the trial court and was also dealt with by the trial court in para 17 of the judgment. I have gone through the findings of the trial court and this court is in full agreement with the findings of the trial court on this point. Apart from it P.W.-4 Shyam Lal, in his evidence has fully supported the prosecution story. The perusal of the impugned judgment shows that the court observed in its judgment that P.W.-4 Shyam Lal is a man of thin and weak structure while appellants are of stout structure. This also supports the prosecution story that being weak P.W.-4 Shyam Lal could not make enough resistance against such brutal act of accused persons who were three in number. This Court is of the view that there cannot be any straight jacket formula on the point that how a person would react in a given circumstances. Different persons, by virtue of their own characteristics, reacts differently in similar situations. P.W.-5 Rajesh Kumar alias Raju Pandit has also stated in his evidence that when he reached there he saw that accused persons were sitting near P.W.-4 Shyam Lal and one accused person was committing rape with the victim. It shows that this witness reached when third accused Ramesh was committing rape. When he along with others persons ran towards them all the accused persons jumped into the river and these persons also jumped into the river and apprehended them. Thereafter P.W.-4 Shyam Lal, victim along with the appellants came to village Khajuha and the other accused persons in his presence and presence of other villagers made extra judicial confession before them. Learned counsel for the the appellants further submitted that none of the appellants was previously known to him. He has also denied the suggestion of the defense that accused persons had not confessed their guilt. In this case all the appellants were apprehended on the spot therefore question of identity has lost all its significance. Therefore, in this case, evidence of the prosecutrix, by itself, was sufficient to establish the guilt of the appellants, moreover, it was fully corroborated by the evidence of P.W.-4 Shyam Lal and P.W.-5 Rajesh Kumar.

13.Argument was also raised on behalf of the appellants that in the medical examination, no injury was found on the body or on private parts of the victim. This argument has also been dealt with in paragraph 22 of the impugned judgment. This point has also been dealt with by the trial court correctly. On the basis of absence of the injuries on the body of the victim the argument of the appellants is that she was a consenting party. But on this point Section 114 (A) of the Indian Evidence Act, 1872, is very material, it reads as under:-

"Presumption as to absence of consent in certain prosecutions for rape- In a prosecution for rape under clause (a) or clause (b) or clause © or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."

Word 'shall' presume has been defined in Section 4 of the Indian Evidence Act, 1872 which reads as under :-

"May Presume- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:

"Shall presume"- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:

"Conclusive proof"-When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it."

14. In this case the victim has categorically stated that rape was committed by appellants against her will, she was crying and making resistance. There is no other circumstances to give rise to an inference that such act was committed with the consent of the victim. The burden of proof of the consent of the victim, was on the appellants but they have not produced any evidence to disprove the presumption which was raised against them by virtue of section 114 (A) of the Indian Evidence Act. In this case the substantive evidence of the victim P.W.-4 Shyam Lal and P.W.-5 Rajesh Kumar fully established the guilt of the appellants, therefore, mere absence of the injury could not be a ground to disbelieve otherwise wholly reliable evidence of the victim and other witnesses. Absence of injury may also be result of desperate surrender, because in this case there were three accused-appellants and they were of stout body structure. This point has been dealt with by the trial court correctly. P.W.-3 Dr. Suman Mishra has stated that if rape is committed for five to seven minutes there may not be any injury on the private part of the victim. In the facts of this case victim is a married lady having a daughter aged about two and half year. Apart from it the occurrence has taken place on the bank of river. The surface of the river bank, because of the effect of water, becomes damp and spongy, therefore, absence of any injury, in the facts of this case would not adversely effect the case of the prosecution. Hon'ble Apex Court in the case of Madhya Pradesh vs. Dayal Sahu reported in (2005) 3 JIC 615 has held that non-examination of doctor and non-production of doctor report would not be fatal to the prosecution case if the statements of prosecutrix and other witnesses inspired confidence.

15. Hon'ble Apex Court in the Utpal Das vs. State of West Bengal 2010 (69) ACC 1030 has held that mere absence of injuries on the part of the private parts of the prosecutrix is no ground to reject her testimony.

16. It is also submitted that the appellants have been falsely implicated but there is nothing on record to infer that appellants have been falsely implicated. There is no enmity between the appellants and the victim. Apart from it, in cases of this nature no lady would falsely implicate any person because it cause greatest possible harm to her own honour and social prestige.

17. In this case there is no evidence that the victim had any enmity with any of the appellants. Though the appellants have suggested enmity but it is only a bald suggestion and there is no evidence to support this suggestion. No woman would falsely implicate any person in a case of this nature because it adversely effects her own prestige and honour to a great extent.

18. Learned counsel for the appellants has submitted that in the absence of F.S.L. Report case ought not to have been decided by the Court. The decision of the case in absence of such report cannot be sustained. It is true that in this case, petticoat of the victim was taken in custody during investigation and the report of the F.S.L. was not on record. Now the question is whether mere absence of the F.S.L. Report would become so important which will lend otherwise reliable evidence of the witnesses unreliable or would be fatal to the prosecution. Hon'ble apex Court in the case of Taiyab Khan v/s State of Bihar (now Jharkhand) MANU/SC/2153/2005 has held that absence of viscera report is of no consequence. In the facts of that case the case of the prosecution was that accused administered poison to the deceased while the case of the defence was that she committed suicide by taking poison. So the unnatural death was established. Likewise in the facts of this case fact of gang rape is established by wholly reliable ocular evidence, hence mere absence of report of F.S.L. becomes insignificant in the facts of this case. Report of F.S.L. has only corroborative value and as stated earlier no corroboration of the evidence of the victim is required in such cases, if her evidence is found to be otherwise reliable

19. Hon'ble Apex Court in the case of Sohan Singh vs. State of Bihar reported in (2010) 1 SCC 680 has held that when F.I.R. by a Hindu lady is lodged with regard to the commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge F.I.R. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the victim must have also gone through great turmoil and only after giving it a serious that, must have decided to lodge the F.I.R.

20. Hon'ble Apex Court in the case of Santhosh Moolya & another vs. State of Karnataka reported in 2010 (2) Crimes 405 (SC) has held that while appreciating the evidence of the prosecutrix the court must always keep in mind that no self-respecting woman would put her honour at stake by falsely lodging commission of rape on her and, therefore, look for corroboration of a testimony is unnecessary and uncalled for. In this case all the appellants in a very brutal manner in the presence of a relative of the victim have committed gang rape with the victim and they were also apprehend on the spot by the villagers who reached there. There is another fact which also supports the prosecution story. All the appellants were of different villages but no relative or friends of the appellants came to village Khajuha for their rescue. It has nowhere been suggested that any one made any effort for their rescue.

21. Lastly it was argued that there is no medical examination of the accused persons. The occurrence of this case relates to the year 1989 while Section 53 A Cr.P.C. which deals with examination of accused persons of rape by medical practitioner was inserted by act on 25.1.2005 by Section 9, with effect from 23.6.2006. Therefore, if the accused persons were not medically examined or investigating Officer made no effort for their medical examination then in the peculiar facts of this case it will not adversely affect the prosecution story.

22. The alternative argument of the learned counsel for the appellants is that the appellants have already served out more than 8 years of sentence, therefore, they may be directed to be released for the period undergone by them. The punishment provided for the offence under Section 376 (2) is as under: - "......shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine."

23. Therefore, in this case, the minimum sentence has been awarded to the accused appellants. The trial court has not imposed any fine while it was also to be imposed. Because the use of the word ' and with fine' makes in mandatory for the court to impose fine. Since there is no appeal for enhancement of sentence, therefore, this Court can not impose fine as it would amount to enhancement of sentence. The manner in which this offence has been committed is so daring and barbaric that the appellants deserves no sympathy of the Court.

24. Accordingly, the appeal lacks merit, it deserves to be dismissed and is accordingly dismissed. Judgment and order of the trial Court is hereby confirmed. If the appellants are in jail, then they shall be released only after serving out their complete sentence awarded by the trial court. In case, any of the appellants is on bail, he shall be arrested forthwith and sent to jail to serve out his remaining sentence. The period already undergone by the appellants, in this case, shall be set off in terms of Section 428 Cr.P.C.

Office is directed to communicate this order to the court concerned for immediate compliance.

Order Date :- 9.5.2012

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