Bablu vs State Of U.P.
2013 Latest Caselaw 5388 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

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

 
Case :- CRIMINAL APPEAL DEFECTIVE No. - 2257 of 2010
 

 
Appellant :- Bablu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kailash Nath Tiwari,Rakesh Babu,Shanker Lal Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anurag Kumar,J.

This is an appeal preferred by accused-appellant Bablu son of Harish Chandra, under Section 376(1) read-with Section 389 Cr.P.C. against the judgment and order dated 08.01.2010 passed by Fast Track Court No. 1, Unnao convicting the appellant under Section 376 I.P.C. and sentencing him for ten years rigorous imprisonment and fine of Rs.5000/- and in default of payment of fine further undergo rigorous imprisonment of five months.

Prosecution case in brief is that Pancham father of the victim lodged a written complaint on 7.11.2008 at Police Station Ajgain, District Unnao with the allegation that on 6.11.2008 when he was inside his house his daughter victim aged about 9 years was playing outside the house, accused-appellant came there and by enticement carried her to a dilapidated house and forcefully committed sexual intercourse with her. On her alarm he and his brother Shiv Kumar reached on the spot, seeing them accused-appellant Bablu ran away from the spot. The cloths of informant's daughter were found bloodstained. The victim told that accused-appellant on the allurement of giving sweet to her carried her to a dilapidated house and committed rape with her. On this written information F.I.R. under Section 376 I.P.C. at crime no. 1864 of 2008 was registered at Police Station Ajgain, District Unnao against accused-appellant Bablu. Investigating Officer immediately started investigation and taken the bloodstain cloth of the victim in his possession and recovery memo was prepared and send victim to hospital for her medical examination. The cloths were sent to Forensic Science Laboratory for chemical analysis. After conclusion of investigation charge-sheet under Section 376 I.P.C. was submitted against the accused-appellant Bablu. The case was committed to the court of Sessions by the learned Magistrate.

Learned trial judge framed the charges against the accused-appellant under Section 376 I.P.C. to which he denied and claimed to be tried. The prosecution in support of his case examined P.W. 1-informant, who proved written information Ext.Ka-1, recovery memo of bloodstain cloths Ext.Ka-2 and memo of returning back custody of victim to her father Ext.Ka-3, victim daughter of informant-Pancham as P.W.2, Dr. B.K. Verma PW.3, who proved x-ray report Ext.Ka-4, P.W.4 ASI Arun Kumar Singh (G.D. and F.I.R. writer), who proved F.I.R. Ext.Ka-5 and G.D. Ext. Ka-6, P.W. 5 S.I. Asha Ram Yadav, who proved site plan Ext. Ka-7 and memo of arrest of the accused-appellant Ext.Ka-8 and memo of taking possession of accused-appellant's underwear Ext.Ka-9, letter to Forensic Science Laboratory for examination Ext.Ka-10 and Charge-sheet Ext.Ka-11 and report of Forensic Science Laboratory Ext. Ka-12 and P.W.6 Dr. P. Niranjan, who examined the victim. Medical legal report of victim Ext.Ka-13 and Supplementary report of victim Ext.Ka-14 and Pathology report Ext.Ka-15 and P.W.7 Dr. Rajesh Kumar, who examined the accused-appellant and the examination report of accused-appellant Ext. Ka-16.

The statement of accused-appellant under Section 313 Cr.P.C. was recorded, in which he denied the allegations of rape and submitted that he was falsely implicated due to his refusal to drive the Tractor of Vineet Vikram Singh, which was now driven by informant. No evidence in defence was produced by the accused-appellant.

Learned Sessions Judge after hearing the argument of both sides and going through the record by his detailed judgment and order dated 8.1.2010 held the accused-appellant guilty under Section 376(2)(f) I.P.C. and sentenced him to rigorous imprisonment for 10 years and fine of Rs.5,000/- and in default of payment of fine further undergo rigorous imprisonment of five months.

Aggrieved by the said judgment and order dated 8.1.2010 the appellant preferred this appeal on the ground that trial court wrongly convicted him on the basis of conjectures without any evidence.

Heard learned counsel for appellant as well as learned A.G.A. and perused the lower court records.

Learned counsel for appellant has submitted that there is delay in lodging of the F.I.R. There is no independent witness of the occurrence. The evidence of victim is not supported by the medical evidence. There is no sufficient evidence on record which prove the guilt of the accused-appellant. There are major contradictions in the evidence of the prosecution witnesses. The accused-appellant is entitled for acquittal.

Learned A.G.A. refuted the contentions and submitted that there is no delay in lodging the F.I.R. In a rape case delay is not of much importance, if it is properly explained. There is no sufficient reason to disbelieve the victim, who is below 12 years of age. There is no sufficient ground to falsely implicate the accused-appellant.

The time of incident is 9.30 p.m. on 6.11.2008 and F.I.R. was lodged on 7.11.2008 at 12.45 p.m. The distance of police station from the place of occurrence is two kilometers. The explanation given by the prosecution for such delay is that due to fear of accused-appellant informant did not go to the police station in the night to lodge the F.I.R. and on the next morning he went police station to lodge the F.I.R. The F.I.R. was lodged on the very next day i.e. 7.11.2008, though there may be few hours delay but in a case of rape that too with a minor girl below 12 years of age in the social circumstances of the country the father of a minor girl is bound to think several times before lodging F.I.R. as social stigma may cause in lodging the F.I.R. In the circumstances, I do not find any delay which is fatal to prosecution in lodging the F.I.R.

As per medical report the age of the prosecutrix is 11 years which is proved by the medical evidence of the doctor and there is nothing on record which is against it. Victim P.W. 2, specifically stated in her examination that the accused-appellant with the allurement to give her sweet, taken her to a dilapidated house and after removing her panty, he also removed his underwear and committed sexual intercourse with her. There is nothing adverse against this evidence. From the evidence of victim it is totally proved that rape was committed by the accused-appellant. Even as per medical report and evidence of P.W.6, Dr. P. Niranjan, there is swelling on the vagina and bleeding was present and as per Forensic Science Laboratory report on the cloths of victim spermatozoa and human semen was found which fully supports the prosecution version. There is no reason whatsoever to disbelieve the evidence of a minor girl of 11 years of age. The evidence of victim was supported by evidence of P.W.1 informant her father. According to statement of P.W.1 that on cry of victim when he reached at the spot along with his brother Shiv Kumar, he saw the accused-appellant running from the spot. The victim narrated the full story to his father which is proved by P.W. 1. In a case of rape the evidence of victim is sufficient for conviction of accused-appellant when it is found confidence inspiring, no corroboration is required unless there are compelling circumstances.

The Hon'ble Apex Court in the case of Moti Lal Vs. State of M.P. [2008 CRI.L.J. 3543] held that the physical scar on a rape victim may heal up, but the mental scar will always remain. When a women is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery and the Hon'ble Apex Court in the case of Dinesh alias Buddha Vs. State of Rajasthan [2006(2)Supreme Court Cases (Cri) 1] held that Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Bodhisattwa Gautam V. Subhra Chakraborty (AIR 1996 SC 922), the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution') The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.

From the above discussion, it is clear that the evidence of victim inspires full confidence and fully proves that rape was committed with her by the accused-appellant and thus the appeal is devoid of merit and is liable to be dismissed. It is hereby dismissed.

Let a copy of this judgment along with lower court records be sent to courts below for immediate compliance.

Order Date :- September 4th , 2013

Prajapati