Ram Kumar vs State Of U.P.
2013 Latest Caselaw 4186 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17
 

 
Case :- CRIMINAL APPEAL No. - 10 of 1997
 

 
Appellant :- Ram Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- M.Naseerullah
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Zaki Ullah Khan,J.

1. Heard learned counsel for appellant, learned A.G.A. and perused the relevant record.

2. Instant criminal appeal has been preferred against the judgment and order dated 23.12.1996 passed by the then V-Additional Sessions Judge, Sitapur, convicting and sentencing the appellant to undergo seven years' rigorous imprisonment under section 376 I.P.C. together with fine of Rs.1000/-. In default of payment of fine the appellant will undergo additional six months' imprisonment.

3. Brief facts giving rise to appeal are that Smt.Chhotkanno prosecutrix wife of Murli Kumhar, Gram Ahiranpurwa Majra Rudha, Bhaunathpur on 3.2.1990 at about 8.00 a.m. had gone to ease himself in the field of 'Arhar', When she was returning, after easing, to her house, the appellant came and caught hold of her and over powered her and dragged her on the ground and raped her ; that on raising alarm, persons working in the nearby field Shambhu and Rikharaj immediately reached on the spot, when they challenged the appellant, he ran way from the place of occurrence ; that prosecutrix informed her father-in-law and on the same day F.I.R. was lodged at 13.25 hours at the police station which is four kilometers from the place of incident ; after investigation the Investigating Officer submitted the charge sheet under section 376 I.P.C. which is Exhibit Ka-10 ; prosecution examined the prosecutrix P.W.1, her father-in-law P.W.2, Natha Ram, P.W. 3-Shambhu, P.W.4, Head Constable Ram Shyam Singh, P.W.5, Dr. O.P. Pandey, and P.W.6, Constable Raj Pal Singh ; after examining the witnesses the trial court held the appellant guilty. Aggrieved by the aforesaid order, the instant appeal has been preferred.

4. During the course of hearing of appeal, learned counsel for appellant has vehemently argued that first of all the prosecutrix is a married lady. She is grown up and is 22 years of age and she was the consenting party. Learned counsel for the appellant further pointed out that she had no mark of injury and nothing has been revealed during external examination, even in internal examination no injury was found on the private part.

5. Learned counsel for appellant reiterated that the prosecutrix's own version is that she was thrown on the ground and then rape was committed upon her but this fact has not been corroborated elsewhere. Next point raised by the learned counsel is that as per her own version number of persons came for her rescue immediately on raising her alarm but none has been produced as witness. This fact is very important because what has happened just before rape and immediately thereafter has not been explained by the prosecution. The F.I.R has been scribed by the father-in-law and she herself submitted the same to the police station that means every thing was pre-planned. She has taken time then after due consultation she got the F.I.R. lodged. Spermatozoa were found on her dhoti but vaginal smear was clear, therefore, there is no corroboration of any type of evidence on record suggesting that rape has been committed. Learned counsel for appellant further reiterated that it was a consenting case and when the matter was disclosed and number of persons were informed, she had no option but to lodge formal complaint. Had no body seen them, it would not have been brought to the notice . The only defence under section 376 I.P.C. is the consent granted by the prosecutrix and since she had given consent, therefore, there was no occasion for the trial court to pass the conviction order against the appellant. The conviction order is, therefore, bad in law, based on legal infirmity.

6. Learned A.G.A. refuted all the arguments and pointed out that the prosecutrix is a married lady and she is habitual of sexual intercourse. The entire transaction took place in couple of minutes and the appellant was excited and after satisfying his lust his semen over flown on the dhoti worn by prosecutrix that is corroborative evidence because the report of public analyst is admissible under the Evidence Act which confirms spot of semen on the dhoti of the prosecutrix. As far as consent of the prosecutrix is concerned, learned A.G.A. pointed out on page 5 of the judgment, learned trial court has mentioned that she was invited by the accused to come over Lal Ji field and when she reached there he committed rape, therefore, there is no question of her consent because if any one goes to meet known person and that person subsequently commits rape then there is no question of consent. She was under the impression that he has called her but motive of appellant was deceptive. Learned A.G.A. further argued that there is admission on the part of appellant that sexual intercourse did take place because he alleges consent as his defence that means he has committed act.

7. Heard. The first and foremost defence put forth by learned defence counsel is that the prosecutrix was a consenting party. This much is sure that the act of sexual intercourse did take place. The only point which this court has to examine is as to whether it was due to result of her own consent or the appellant forcibly ravished her.

Section 375 I.P.C. says that :

A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

First - Against her will.

Secondly- Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly-	With her consent, when, at the time of giving such 			consent, by reason of unsoundness of mind or 			intoxication or the administration by him personally or 		through another of any stupefying or unwholesome 		substance, she is unable to 	understand the nature and 		consequences of that to which she gives consent.
 
Sixthly-	With or without her consent, when she is under sixteen 		years of age.
 

 

In this section various clauses have been mentioned according to which the consent will have to be examined in the light of evidence on record. Exhibit Ka-2 is the hand written report submitted to the police station on 3.2.1990 at 13.25 hours while the incident took place at 8.00 a.m. The police station is at a distance of 4 kilometers from the place of occurrence, that means some time must have taken to reach the police station ; occurrence took place at 8.00 a.m. immediately thereafter she reported the matter to her father-in-law who scribed the written report. He has also been examined as P.W.3. The prosecutrix has also stated in her statement on oath under section 164 Cr.P.C. alleging that she has been raped forcibly ; the appellant has admittedly performed sexual intercourse ; none of the witnesses said to have immediately reached at the place of occurrence have been examined. But the important thing is that the statement of the prosecutrix has been corroborated by chemical examination report which is inconformity with her own statement that during the course of satisfying his lust, his semen spread on parts of her dhoti because the act was done in so much hurry immediately thereafter and she raised alarm. The appellant was in panic and was trying to flee from the place of occurrence, therefore, consequences were obvious, therefore, this is one of the strongest corroboration.

8. The arguments raised by learned counsel for appellant is that since she is a married lady the spot of semen cannot be taken very seriously but the circumstances here are very convincing that immediately after screaming and raising alarm the semen was dropped and after couple of hours it was taken by the police concerned for examination, therefore, her subsequent conduct is very important and the conduct of the appellant also is very attractive in view of Section 8 of the Evidence Act and the entire episode is relevant in view of section 6 of the Evidence Act. There is no denial that sexual intercourse did not take place and the only thing is that it was a under consent granted by the prosecutrix herself. During the course of her cross examination, there is no suggestion of this type. No defence witness has been examined and there is nothing of any sort that there were previous relationship between the two and she used to grant favour to the appellant. It was the sole incident and no other incident ever has been pointed out.

9. Coming to the legal position under the Evidence Act, the burden is on the prosecution to establish its case ; the prosecution established its case by providing the entire evidence. Now onus is on the appellant specially when the appellant has propounded the theory that she was a consenting party ; that means actual act has not been denied. Learned counsel for appellant has cited the case reported in 2008 (1) JIC 927 (All), in the case of Ram Ratan v. State with Vidya Ram v. State. In that case the rape Victim was a married lady of 20 years. The F.I.R. was lodged against two persons, one named and another unknown. On medical examination no external injury was found. In Court evidence was given against appellants who were not named in FIR. Vague explanation was given for change of name of accused ; Evidence show that she was conscious at time of narration of incident. Doctor also certified this fact. It was held that possibility of false implication under influence of village Pradhan cannot be ruled out, hence, conviction cannot be sustained and the appeal was allowed. I have gone through the record and ruling of the Division Bench of this Court. In my opinion, the facts are distinguishable and hence appellant cannot take any benefit out of it.

10. Learned counsel for appellant also cited another case reported in 2007 (1) JIC 621 (SC), Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr. It was also a case of no injury on private part of prosecutrix. Medical evidence belied any occurrence of rape. There was also absence of spermatozoa in vaginal swab of prosecutrix. She not try to make any noise or get out of room. She was well bodied. Semen found on undergarments of appellant and sari of prosecutrix only creates suspicion. Evidence and surrounding circumstances belied any case of rape. Hence it was held that the appellant was entitled to benefit of doubt. The conviction was set aside and the appeal was allowed. In the instant case, facts are entirely different and at the same time, in the instant appeal, it is appellant, who propounded that prosecutrix was a consenting party; that means there is no denial of sexual act but only thing is that he is placing his defence whereas in the judgment of Hon'ble the Apex Court cited above the facts are otherwise and are distinguishable.

11. In view of arguments of learned counsel for appellant the onus was on the appellant to establish through evidence that she was a consenting party. The only thing is that the prosecution case says that the prosecutrix was summoned by the appellant and no other incident is there showing prior friendship or prior acquaintance. Therefore, this theory of consent cannot be taken for granted. The appellant himself did not establish his defence in the trial court.

12. I do not find any illegality in the order passed by court below. The appeal is liable to be and is dismissed The appellant was on bail, his bail is cancelled. Let non bailable warrant of arrest be issued against the appellant and if the appellant surrenders before the court concerned he shall be taken into custody and sent to jail to serve out the sentence. The lower court record be sent back along with a copy of this judgment to the court concerned for compliance.

Registrar of this Court to inform the court concerned immediately for compliance.

Order Date :- 16.7.2013

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