Lakhan vs State Of U.P.
2013 Latest Caselaw 4810 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									          Reserved
 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 343 of 1996
 

 
Appellant :- Lakhan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Y.S. Rathore,Salil Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

1.Heard learned counsel for the appellant, learned A.G.A. On behalf of the State and perused the record.

2.Under challenge in this appeal is the judgment and order dated 24.07.1996 passed in S.T. No. 670/1994 by Special Judge Unnao whereby the appellant Lakhan was convicted for the offence under Section 376 I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years and for the offence under Section 506 I.P.C. the appellant was convicted and sentenced for a period of one year's rigorous imprisonment. Both the sentences were directed to run concurrently.

3.The case of the prosecution, in brief, was that the victim, who was a married lady, is resident of Village Narsa, police station Auras, district Unnao. On 07.05.1994 at about 8.00 p.m., the victim had gone to the well to bring back the rope. At that time, appellant Lakhan who was standing near the well, in front of his house, stopped the victim and dragged her towards his home after gagging her mouth and took her inside his house. There he committed rape with the victim and also threatened her with dire consequence, in case she raised any alarm. The victim any how managed to remove the hand of the appellant from her mouth. She raised alarm, whereupon Lekhan and Chheddu and some other villagers reached there and saw the occurrence. Appellant was successful in fleeing away from the place of occurrence, on seeing these persons. The victim went to her house and informed this incident to her father-in-law, mother-in-law and brother-in-law. It is alleged that her husband had gone to some relation, therefore, she waited for the husband to come back. When her husband did not come back till next day then on 8.5.1994 F.I.R. of this case was lodged by the victim herself which was scribed by one D.N. Dixit and on the basis of this F.I.R. (exhibit ka-4), case crime no. 74/1994 was registered and chick report exhibit ka-6 was prepared. Details of the registration of the case were entered into G.D. (exhibit ka-7). Victim was sent for medical examination. She was medically examined on 08.04.1994 at 9.15 p.m. at hospital Unnao and vaginal smear was sent for pathological test. In the pathological report (exhibit ka-2) no living or dead spermatozoa was seen. The victim underwent radiological examination for the assessment of her age. X-ray report was marked as exhibit ka-3 and as per the same, she was aged about 18 years. Petticoat which she was putting on at the time of occurrence was taken in to custody and its memo exhibit ka-5 was prepared. Fard of the torch with which the incident was seen by the witnesses was prepared as exhibit ka 8. Investigating officer prepared the site plan, (exhibit ka-9) and after concluding the investigation submitted charge-sheet (exhibit ka-10).

4.In order to prove its case prosecution has examined P.W. 1 Dr. Smt. S.K.. Pandey who has proved the medical papers, P.W. 2 victim, P.W. 3 Deo Narayn who has scribed the F.I.R., P.W. 4 Bhure who was the witness of the memo of petticoat, P.W.. 5 Nanhu who is father-in-law of the victim, P.W. 6 Constable who has prepared the chick report and G.D. P.W. 7 Investigating Officer Rahimuddin who investigated the case. Prosecution has also proved petticoat of the victim, as material exhibit-1 which she was wearing at the time of incident and was taken into custody during investigation.

5.The case of the defence was that the appellant was on inimical terms with the 'Pradhan' of the village. Waste water of the victim's house was falling in his house. Due to which, there was an enmity and due to this enmity this false case has been lodged against him.

6. After evaluating the evidence on record, the trial court convicted the appellant as above, hence the instant appeal.

7.Submission of the learned counsel for the appellant is that in this case F.I.R. was lodged after considerable delay and there is no reliable explanation for the same. It is further submitted that no injuries were found on the body of the victim and she did not even made any complaint of pain to the doctor. Therefore, the absence of injuries falsify the prosecution version. It is further submitted that the evidence of the victim was not supported by any other evidence. Therefore, no reliance can be placed on the sole testimony of this witness. The other alleged eye-witnesses who reached at the place of occurrence have not been produced by the prosecution.

8.In every criminal case F.I.R. is an important document. It is the first version of the prosecution and entire prosecution case rests on it. Admittedly, in this case, the F.I.R. was lodged after about 16 hours.

9.Law is settled on the point that entire prosecution story cannot be thrown away simply on the ground that F.I.R. has been lodged with delay. If the delay is explained properly then it does not adversely affect the prosecution. Hon'ble Apex court in the case of Jitendra Kumar Vs. State of Haryana reported in [(2012) 6 SCC 204] in paragraph no. 18 has held as under :-

"The court has also to consider the fact that the main purpose of the F.I.R. Is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakeable precision in the F.I.R. The F.I.R. Itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The F.I.R. Need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference in this regard can be made to State of U.P. v. Krishna Master [(2010) 12 SCC 324] and Ranjit Singh v. State of M.P. [(2011) 4 SCC 336]".

10.Hon'ble Apex Court in the case of State of Himachal Pradesh versus Gian Chandra reported in 2001(3) scale page 565 has considered the aspect of delay in F.I.R. in rape cases and has held that in the incidents like rape, more so when perpetrator of the crime happens to be the member of the family or related therewith, involve the honour of the family and therefore there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the Court. A cool thought may precede lodging of the F.I.R.

11.In the facts of the instant case, the husband of the victim was not present at the house, therefore, the family members considered it proper to wait for him when he could not come back then on the next day, the complainant's side went to lodge the F.I.R. The victim was accompanied by her father-in-law, her Aunty-in-law and her Jeth Dheeraj. F.I.R. of this case was lodged on 8.5.1994 at 13.30. The explanation of delay was considered to be satisfactory by the trial court and this court is also of the same view that the delay in this case has been explained satisfactorily. There was valid reason for the complainant's side to wait for the husband of the victim. If the victim considered the consent of her husband necessary before filing F.I.R., the same cannot be said to be an unnatural reason. This view finds support from the judgment of Hon'ble Apex court in the case of Sri Narain Saha and another v. State of Tripura reported in (2004)7SCC 775 wherein in para 8 Hon'ble Apex Court has observed as under :-

"In India if the prosecutrix happened to be a married person, she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly, does not raise the question that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women. It casts doubt and shame upon her rather than comfort and sympathy. Therefore, the delay in lodging complaint in such cases does not necessarily indicate that her version is false".

12.Great emphasis has been led by the learned counsel for the appellant that no injury was found on the person of the victim. As per the prosecution story the victim was dragged by the appellant, holding her hand but no injury was found on her person. It is further submitted that no injury was found on the private parts of the victim, therefore, the absence of injury itself falsify the prosecution story. This argument has also been considered by the trial court and has been rejected rightly.

13.Hon'ble Apex court in the case of Utpal Deo and another versus State of West Bengal reported in (2010)6 SCC page 493 in para 22 has observed that "We are required to note that victim Sita Rani Jha is a married grown-up lady and blessed with two children and in such circumstances absences of injuries on her private parts is not of much significant. The mere fact that no injury was found on private parts of her body cannot be the ground to hold that she was not subjected to any sexual assault. The entire prosecution story cannot be disbelieved based on that singular assertion of the learned counsel".

14.Hon'ble Apex Court in the case of Dastgeer and another versus State of Karnataka reported in 2004(3) SCC page 106 in para 26 has held that the injury on the body of the persons of the victim is not a sine qua non to prove a charge of rape. Absence of injury having regard to overwhelming ocular evidence cannot, thus, be the sole assertion for coming to conclusion that no such offence had taken place.

15.It is further submitted that no spermatozoa was found in pathological report.

16.This point has also been considered by the Hon'ble Apex court in the case of State of Karnataka versus Muniyappa and others reported in 1994(5) SCC page 728 in para 4 (vi) as under:-

"It was never elicited from the prosecutrix as to whether the two persons who committed rape on her had reached orgasm emitting semen in her private parts. No presumption can be made that penetration of penis in the private parts of a rape victim must necessarily lead to the discovery of spermatozoa. It is a question of detail and has to be put to test by cross-examination. Otherwise also there may be various other factors which may negative the presence of spermatozoa such as faulty taking of the smear, its preservation, quality of semen etc. The absence of spermatozoa prima facie could not be allowed to tell against the version of the prosecutrix".

17.In her evidence, the victim has fully supported the prosecution story and has stated that she was taken forcibly inside her house and she was raped by the applicant. She any how managed to open her mouth and raised alarm. Hearing the alarm witnesses reached there. This conduct of the victim shows that the appellant had to leave the victim on her alarm. Therefore, the absence of any spermatozoa, in the facts of this case, does not adversely affect the prosecution story.

18.Submission of the learned counsel for the appellant is that the appellant has been falsely implicated does not inspire confidence. The evidence has to be appreciated keeping in view the ground realities. In the Indian society, it is hard to believe that any married lady or any lady would falsely implicate any other persons in such an offence, only because of minor enmity. Stopping the discharge of waste water of her house as is alleged in this case cannot be said to be a ground to falsely implicate any person in such an offence. This defence story does not inspire confidence.

19.Hon'ble Apex in the case of State of Uttar Pradesh versus Chhotey Lal reported in (2011) 2 SCC page 550 in para 26 has held as under :-

26. The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of woman's oppression. A forcible sexual assault brings in humiliation, feeling of disgust,tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman,and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge".

20. A prosecutrix is undoubtedly a competent witness and her evidence receives the same weight as is attached to an injured witness. She can not be treated to be an accomplice of the offence. What value should be attached to the evidence of prosecutrix in rape cases has been considered by the Hon'ble Apex court in the case of Raju and others versus State of Madhya Pradesh (2008) 15 SCC page 133. Hon'ble Apex Court has held in para 10 as under :-

"The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court".

21.On this point, the observations in the case of State of Punjab v. Gurmit Singh and others reported in (1996)2 SCC 384 has been reiterated by the Hon'ble Apex court in the case of Raju and others versus State of Madhya Pradesh reported in (2008) 15 SCC page 133 and quoted para 8 of the judgment which reads as under :-

"8 The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases 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 a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. (emphasis supplied) Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uninformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable".(emphasis in original).

22.In the facts of this case, P.W. 2 the victim has fully supported the prosecution story in her examination-in-chief and has supported the same during cross examination also. The trial court has considered all the grounds in correct perspective, therefore, to repeat the the same reason, would unnecessarily make the judgment lengthy. This court is in full agreement with the findings given by the trial court on the arguments raised by the learned counsel for the accused before the trial court and no new argument has been pressed into service in this appeal. The evidence of the prosecutrix was found to be wholly reliable. The appellant has raised the defence of false implication but there is no evidence in support thereof.

23. The victim is an illiterate lady who has put in her thumb impression on F.I.R. Submission of the learned counsel for the appellant is that when the appellant had obstructed the waste water of the house of the prsecutrix then she had made complaint to Pradhan and he called the appellant and asked the prosecutrix that unless and until he would falsely implicate him in any matter till then he will not accept his advice. But this suggestion of the defence has been denied by the prosecutrix. However, she has admitted that Pradhan was not happy with the appellant but this by itself cannot be a ground to throw away the otherwise reliable evidence of the witness. Prosecutrix was a married lady, therefore, as discussed above, absence of injury on her body or private parts would not adversely affect her evidence. Her evidence is wholly reliable and the appellant has been sentenced with the period of imprisonment of seven years which is the minimum provided under the Section. There is no ground to interfere in the minimum sentence inflicted on the appellant.

24.In view of the discussions made above, this appeal lacks merit and deserves to be dismissed and it is accordingly dismissed.

25.The appellant is on bail. His bail is hereby canceled. He shall be taken into custody forthwith to serve out the remainder of the sentence passed by the trial court. Period of detention already undergone by him, in this case, shall be set off in accordance with the provisions of Section 428 of Code of criminal procedure.

26.Office is directed to communicate this order forthwith to the court concerned to ensure compliance.

27.Lower court record be sent back.

Order Date :- 1st August 2013

Kan