Sushil Sharma vs State Of U.P.
2013 Latest Caselaw 6195 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved.
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 986 of 2010
 

 
Appellant :- Sushil Sharma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Piyush Kumar Mishra,A K Tewari, Jai Prakash Singh,R P Mishra,S.P. Singh Somvanshi, Yashwant Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anurag Kumar,J.

This is an appeal preferred by the accused-appellant Sushil Sharma under Section 374(2) read with Section 389 of the Criminal Procedure Code against the judgment and order dated 27.3.2010 passed by Additional Sessions Judge, Room No. 4, District Pratapgarh in Sessions Trial No. 156 of 2008, arising out of case crime no. 128 of 2007 under Section 376 I.P.C., Police Station Mandhata, District Pratapgarh, convicting and sentencing the accused-appellant under Section 376 I.P.C. for seven years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine additional conviction of two months.

Prosecution version in nutshell is that on an application moved by the informant Smt. Suman Sharma under Section 156(3) Cr.P.C. on 5.5.2007 by Court order F.I.R. was registered against the accused-appellant Sushil Sharma under Section 376 I.P.C. on 25.5.2007 at Police Station Mandhata, District Pratapgarh with the allegation that on 12.3.2007 when informant went to her field for collecting peas at 11.00 a.m. accused-appellant Sushil Sharma went into the house of informant on pretext that whether there is whey in the house, he needs it, and committed sexual intercourse with her daughter Km. Roshni Sharma aged about 12-13 years, when her daughter tried to shout, he closed her mouth. On her return from the field her daughter-victim narrated the whole story to her. Informant's husband was at Ahmadabad (Gujarat) in connection with his livelihood. The informant told her husband about the incident. Informant's husband advised her to give information at police station. Informant given a written information on 15.3.2007 at police station Mandhata. The F.I.R. was not registered and only assurance was given to her that an F.I.R. will be registered after enquiry but no action was taken then she called her husband and on 17.4.2007 after coming from Ahmadabad her husband along with informant went to police station Mandhata on 18.4.2007 for lodging of the FIR even then no action was taken, then an application was given to Deputy Superintendent of Police, Pratapgarh as Superintendent of Police was not at the station, even then no action was taken, then application under Section 156(3) Cr.P.C. was moved before the court concerned. After registration of F.I.R. statement of victim was recorded under Section 164 Cr.P.C. and victim was also examined by the doctor and as per medical report her age was about 12 years. After completion of investigation charge-sheet was submitted against the accused-appellant Sushil Sharma under Section 376/511 I.P.C. The case was committed by the Magistrate to the Court of Sessions and charge under Section 376 I.P.C. was framed against the accused-appellant.

Prosecution examined P.W.1 Suman Sharma-informant, who proved application under Section 156(3) Cr.P.C. as Ext. Ka-1 and application to Deputy Superintendent of Police as Ext. Ka-2, P.W. 2 Kumari Roshni Sharma victim, P.W. 3 Dr. R.S. Verma, who proved medical report Ext. Ka-4, P.W. 4 Dr. Shail Prabha Srivastava, who examined victim and proved report Ext-Ka-5 and Supplementary report Ext-Ka-6, P.W. 6 Constable Moharrir Gaya Prasad Patel, who proved F.I.R. and G.D. entry Ext. Ka-7 and Ka-8, P.W.7 S.I. Virendra Kumar Singh, Investigating Officer of the case, who proved site plan Ext. Ka-9, memo of taking victim into custody Ext-Ka-10, memo of giving custody of victim to informant as Ext. Ka-11 and charge-sheet Ext. Ka-12.

Accused-appellant was examined under Section 313 Cr.P.C. In the statement recorded under Section 313 Cr.P.C. accused-appellant denied the allegation and said that he was falsely implicated due to property dispute. At the time of incident victim was in school and in fact, no such incident took place. In defence accused-appellant examined D.W.1 Sri Har Prasad Tripathi, principal of the school where victim was studying, who proved copy of attendance register Ext. Kha-1, D.W. 2 Sri Harinath Singh, who is an witness of enmity between parties.

Hearing the arguments of both sides, learned trial court by his impugned judgment and order dated 27.3.2010 convicted the accused-appellant under Section 376 I.P.C. for seven years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine two months imprisonment.

Aggrieved by the said judgment present appeal has been filed by the accused-appellant, mainly, on the ground that applicant was convicted by the lower court without appreciating the evidence on record. There is a delay in lodging of the first information report. No such occurrence took place as victim was in school at the time of incident.

Heard Sri R.P. Mishra, learned counsel for accused-appellant as well as Sri S.P. Singh, learned Additional Government Advocate for the State and perused the lower court records.

In support of appeal learned counsel for accused-appellant submitted that prosecution version is highly improbable. Accused-appellant was falsely implicated due to enmity. There is a delay of two months in lodging of the first information report. Medical evidence did not support the prosecution version. At the time of incident victim was in school. There is single testimony of victim in support of prosecution case that too is not supported by medical evidence and the evidence of the prosecutrix-victim lacks confidence. Learned Sessions Judge without sufficient evidence wrongly held the accused-appellant guilty under Section 376 I.P.C.

Per-contra learned Additional Government Advocate submitted that prosecution fully proved its case beyond all reasonable doubts. He further submitted that a minor girl would not tornish or damage her own reputation or image merely because of a family dispute. The accused-appellant voluntarily alleged false implication that she had been raped. From the evidence of the victim who is a minor girl of 12 years old has no reason to falsely implicate the accused-appellant. Medical evidence is two and half months after the incident and is not of much value. The evidence of the victim alone is sufficient to prove prosecution case. Learned trial court after well discussion rightly held the accused-appellant guilty under Section 376 of the I.P.C.

As per prosecution case incident was of 12.3.2007 and admittedly the F.I.R. was registered on 22.5.2007, as such, there is a delay of about two months and ten days in lodging the F.I.R. The explanation given by the prosecution is clear by the application under Section 156(3) Cr.P.C. on the basis of which F.I.R. was registered against the accused-appellant. At the time of incident the father of the victim was at Ahmadabad (Gujarat) in connection with his employment and the victim and her mother alone were in the village. The informant informed her husband, who advised her to move an application at police station Mandhata, district Pratapgarh. The informant moved an application to the police station concerned but no action was taken and false assurance was given to her that firstly they will enquire into the matter and then they will lodge the F.I.R. Informant called her husband and on his arrival they again went to the police station and when no action was taken then they moved an application before Deputy Superintendent of Police, Pratapgarh which was proved as Ext. Ka-2. Even on that application when no action was taken then application under Section 156(3) Cr.P.C. was moved, thus, the explanation given by the prosecution is sufficient. In spite of delay in lodging the F.I.R., in a case of sexual assault delay is not of much value because the dignity of a female was involved in such type of cases.

The Hon'ble Apex Court in the case of Sri Narayan Saha and another Vs. State of Tripura [2004(7) Supreme Court Cases 775] in para-5 held as under:

"5.We wish to first deal with the plea relating to the delayed lodging of the F.I.R. As held in a large number of cases, mere delay in lodging the FIR is really of no consequence, if the reason is explained. In the instant case, the evidence of P.W.3, the victim and that of her husband, P.W.4, clearly shows that there was initial reluctance to report the matter to the police by P.W.4. He, in fact, had taken his wife to task for the incident and had slapped her." Thus, the delay in lodging the F.I.R. was reasonably explained.

The next submission of learned counsel for accused-appellant is that there are major contradictions in the statement of victim. There is no corroboration of her evidence. Even the medical report did not support the prosecution version. As per statement of victim the accused-appellant committed sexual intercourse for 2-3 minutes and the hymen of the victim was found intact and as per evidence of P.W.4 Dr. Shail Prabha Srivastava, if there is sexual intercourse for 2-3 minutes, hymen must be torned. Victim in her statement never stated that accused-appellant committed sexual intercourse with her for 2-3 minutes. She only stated that accused-appellant was lying over her for 2-3 minutes, which does not mean that for 2-3 minutes accused-appellant has committed sexual intercourse with the victim. The law is very clear in this respect that in a case of rape prosecutrix complaining of having been a victim of the offence of rape is not an accomplice to the crime. There is no rule of law that her testimony cannot be acted without corroboration of any material particulars. She stands at higher pedestral then an injured witness in the later case there is injury on the physical form while in the former it is both physical as well as psychological and emotional.

In State of Maharashtra vs. Chandraprakash Kewalchand Jain [1990(11) 1 SCC 550] it was held that "A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The 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 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. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. 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. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. 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."

24. In 1996 SCC (Cri) 316, State of Punjab vs. Gurmit Singh, the Hon'ble Apex Court made the following weighty observations in paras 8 & 21.

"8......The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix.... 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.... Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury.... 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......

21.....The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

In Vijay Vs. State of M.P. 2010 (3) SCC (Cri) 639decided recently, Hon'ble Apex Court referred to the above two decisions of this Court in Chandraprakash Kewalchand Jain and Gurmit Singh and also few other decisions and observed as follows :

"14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."

Thus, the important thing that the Court has to bear in mind that what is lost by a victim held is this, 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.

From the evidence of prosecutrix P.W.2 it is quite clear that the accused-appellant committed sexual intercourse with her. The age of the victim is very material. She is a minor girl aged 12 years old. There is no reason to falsely implicate any person in such type of cases. The defence evidence in this regard that accused-appellant was falsely implicated due to enmity could not inspire much confidence.

The Hon'ble Apex Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat [1983(3) SCC 217] in paragraph-10 held as under:

"10. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because-

(1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.

(2) She would be conscious of the danger of being ostracized by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours.

(3) She would have to brave the whole world.

(4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.

(5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.

(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself.

(7) The fear of being taunted by others will always haunt her.

(8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo.

(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy.

(10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour.

(11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence.

(12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."

The next contention of learned counsel for appellant is that the victim was in the school at the time of alleged incident as she was studying in class-7th in Tikari Babaganj Purva Madhyamik Vidyalaya. The principal of the said school, D.W.1 proved the attendance register and as per attendance register victim was present in the school on the date and time of the alleged occurrence and as such the said incident is not possible.

D.W.1, who proved the attendance register is the principal of the school and not the class teacher of the said school. From his evidence it is not clear that class teacher at the relevant time of the class Sri Sheetla Bux, who is alive and still working in the school and why he was not produced as witness to prove the attendance of the victim. As per evidence of D.W.1 he has given evidence only on the basis of entry in the attendance register and he has no personal knowledge of the presence of the victim on the said date and time. From the perusal of the photostat copy of the said attendance register it is clear that all entries were filled up simultaneously and the evidence of defence not clearly proves that the victim was not present at the place of incident and in fact she was in her school. The defence totally failed to prove that the victim was present in the school. The entries in the attendance register is not reliable and best witness who has personal knowledge of the presence of the victim in the school was not produced, thus, from the above discussion, I do not find any force in the said argument of the appellant counsel.

From the above discussion it is quite clear that the appeal lacks merit and is liable to be dismissed. It is accordingly dismissed.

Let lower courts record along with a copy of this judgment be send for compliance and necessary action.

Order Date :- October 1st, 2013

Prajapati