Altaf vs State Of U.P.
2014 Latest Caselaw 4407 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Criminal Appeal No. 747 of 2012
 
Altaf s/o Wali Ahmad resident of Village Khera P. S. Shahabad District Rampur.
 
			...		...		...		Appellant
 

 
						Versus
 
State of U.P.
 
			...		...		...		Respondent
 

 
Counsel for Appellants : Mohd. Irfan
 
Counsel for Respondent : Zafeer Ahmad, AGA. 
 
Hon'ble Anil Kumar Sharma, J.

Challenge in this appeal is to the judgment and order dated 9.02.2012 passed by Smt. Kamini Pathak, the then Addl. Sessions Judge (Ex-Cadre), Rampur in S.T. No. 422 of 2008 (State Vs. Altaf) whereby the appellant had been convicted for the offence punishable under section 376 IPC and had been sentenced to undergo seven years' rigorous imprisonment and fine of Rs. 5,000/- with default stipulation.

2. Shorn of details, the prosecution story is that on 2.8.2008 Mehndi Hasan s/o Pearey r/o village Kheda P. S. Shahabad submitted a written report at 8.40 a.m. in police station Shahabad stating that yesterday he along with his wife had gone towards Bilari in his relations and his 14-years' old victim (name not given due to bar of section 228-A IPC) was alone at home. Yesterday at about 7.00 p.m. his co-villager Altaf called his daughter in dilapidated house of Lalu and forcibly committed rape with her. On hearing her weeping cries his brother Khurshid and nephew Sharafat went towards Lalu's house, then accused Altaf who was ravishing his daughter, made his escape good. This incident was conveyed to him by his brother on phone in night at his in-laws' house. In the night at about 10.00 p.m. he returned back and then his daughter narrated the incident to him. The complainant along with family including the victim reached at the police station and handed over the written report, on the basis whereof case at crime no. 1058/08 u/s 376 IPC was registered against the accused, investigation whereof was entrusted to SI Ratan Singh. Sri Singh interrogated the complainant at the police station and then reached at the spot. He interrogated Nazir Ali, Sharafat and at their instance prepared site plan. Witnesses Nabi Husain, Ram Bahadur, Shiv Singh, Nawab and Mahilal were also interrogated. On 3.8.2008, the statement of the victim, her mother and Khurshid were recorded by the investigating officer. The salwar and kurta which the victim was wearing at the time of incident were taken through memo in presence of witnesses Sikander and Zakir. The complainant also handed over the apparels (a pant, an underwear, a belt, a purse) and a pair of chappal of the accused which were left by him at the spot while he fled away from after seeing the witnesses. Ere that victim was sent for medical examination and she was examined by lady Dr. Chitra Jauhari on 2.8.2008 at 1.30 p.m. She found that the height of the victim was 4 ft. 6 inches, weight - 40 Kgs., teeth - 14/14. Breast, axillary and pubic hairs were present. She did not find any mark of injury on any part of her body. On local examination also no mark of injury was found on her private parts. Vagina admitted one finger. Hymen was represented by old healed tags. There was no discharge or bleeding. Vaginal smear was taken and sent for pathological examination. X-ray of right elbow joint, wrist and knee joint was advised for ascertainment of her age. In pathological examination of vaginal smear no sperm alive or dead was found. Dr. R. K. Sharma, Radiologist, District Hospital, Rampur conducted x-ray examination of the victim. He found that all epiphysis of right elbow joint have fused with their respective shafts. In x-ray of knee epiphysis of the lower end of femur and upper end of tibia were found fused while and upper end of fibula were not fused with respective shafts. The x-ray of right writ joint revealed that epiphysis of the distal ends of radius and ulna bones have not fused with their respective shafts. On the basis of the report of the Readiologist and the pathology report, Dr. Chitra Jauhari vide supplementary report dated 6.8.2008 had opined that the girl's age was between 16 to 17-years and no definite opinion about rape can be given. The salwar and kurta of the victim were sent for examination to Forensic Science Laboratory Agra, who vide report dated 26.8.2008 have found sperms, human blood and semen on the salwar of the victim while no blood or semen was found on her kurta. The investigating officer arrested the accused on 11.8.2008 and after completing the investigation submitted charge-sheet against the accused.

3. After committal of the case to the Court of Session charge for the offence punishable u/s 376 IPC was framed against the accused-appellant who abjured the guilt and claimed trial.

4. In order to prove its case the prosecution has examined complainant Mehndi Hasan PW-1, his daughter 'victim' PW-2, Nasir Husain PW-3, Sharafat PW-4, Khursheed PW-5, SSI Ratan Singh PW-6, Constable Ved Prakash PW-7, Dr. R. K. Sharma PW-8, Dr. Chitra Jauhari PW-9 and HC Raj Veer Singh PW-10. The statements of Gajram Singh, Zakir and Sikandar were recorded as CW-1 to CW-3 respectively.

5. In his statement u/s 313 Cr. P. C. the accused had again denied the entire prosecution story as also the circumstances appearing in evidence against him. However, he has not adduced any evidence, oral or documentary, in his defence.

6. The learned trial Court after hearing the parties' counsel has convicted and sentenced the accused as indicated in para-1 of the judgment above. Aggrieved, he has come up in appeal.

7. I have heard the learned counsel for the appellant, learned AGA for the State and perused the original record of the trial Court.

8. Learned counsel for the appellant has vehemently argued that the learned trial Court has not appreciated the evidence on record in correct perspective and the impugned findings are based on surmises and conjectures. His main grievance is that the victim and the so-called witnesses of fact namely PW-3 to PW-5 have not supported the prosecution story and even then the findings of conviction had been illegally recorded by the learned trial Court. He has further submitted that the victim was a consenting party and as such the conviction of the accused and sentence awarded to him are wholly illegal and thus the appeal is liable to be allowed.

9. Per contra learned AGA supporting the impugned judgment has argued that the victim has supported the prosecution story in her examination-in-chief and on adjourned date (at the instance of accused), she had taken a u-turn and has not supported the prosecution story. It appears that the complainant has entered into an unethical compromise with the accused and that's why PW-3 to PW-5 have also not supported the prosecution version and had been declared hostile, argued the learned AGA. It has been further submitted that the circumstances as also the link evidence clearly bring home the guilt to the accused and the learned trial Court has not at all erred in returning findings of guilt against the accused for the offence punishable u/s 376 IPC and appropriate sentence had been awarded to him.

10. Before we proceed to analyze the evidence on record in order to appreciate the arguments advanced at the Bar by the learned counsel for the parties, it would be just and appropriate to narrate in brief, the statements given by the prosecution and court witnesses in their examinaton-in-chief.

11. Complainant Mehndi Hasan PW-1 has corroborated the contents as also the execution of the written report Ex. Ka-1. He stated that on the day of incident he had gone to in-laws along with his wife. His minor daughter aged about 14 years was taken by accused Altaf in khandahr of Lalu and forcibly committed rape with her. The weeping cries of the daughter attracted his brother Khursheed and Sharafat who reached at the spot and seeing them the accused made his escape good. His brother Khursheed informed him about the incident on phone and he rushed to the village and reached there at about 9.00 p.m., where the daughter told the incident to him. Next day morning he got report scribed from Nathu, which was read over to him and then it was thumb-marked by him. The report has been proved as Ex. Ka-1 which was handed over by all his family members at the police station. He has concluded that after registration of the case, his daughter was sent for medical examination.

12. The Victim PW-2 has stated that about 1 year and 11 months ago at about 7.00 p.m. she along with younger brother Nadir were at home and her parents had gone to maternal uncle's village Turkheda. Accused Altaf present in court came inside her house and dragged her to the house of Lalu where no body resided and there was a chhappar. Her brother protested. In the chhappar accused took out her clothes and after putting off his own clothes forcibly committed rape with her. Her cries attracted Khursheed and Sharafat and then the accused leaving his clothes and chappal made his escape good. Due to this incident, she had been married about a year back in village Dhoranpur. She had further stated that she was medically examined and interrogated by the police. Before close of her examination-in-chief, to a Court question, the victim has given the following answer:

"To Court - eSa vkt tks c;ku vnkyr esa ns jgh gwW og fcuk fdlh Mj o ncko ds ns jgh gwWA"

13. Nazir Husain PW-3 aged about 11-years is younger brother of the victim. After preliminary question and answers to test his power of understanding and importance of oath, his testimony was recorded wherein he has stated that he knows the accused present in Court who resides at a distance from his house and he never called his sister from the house in his presence. He has been declared hostile and with the permission of the Court he was cross-examined by the State counsel.

14. Sharafat PW-4 is nephew of complainant Mehndi Hasan. He has stated that about two years ago he or his uncle has not seen accused Altaf committing rape with his sister. He too has been declared hostile and the ADGC (Cr) was permitted to cross-examine him.

15. Khursheed PW-5 is the real brother of the complainant Mehndi Hasan. Corroborating the statement of Sharafat PW-4, he too had denied to have seen accused Altaf committing rape with the victim about two years ago. After declaring him hostile, he had been cross-examined by the counsel for the State.

16. SSI Ratan Singh PW-6 was entrusted with the investigation of the case on 2.8.2008. He has proved the investigatory formalities completed by him up to the stage of submitting charge-sheet against the accused. He has also proved the wearing apparels of the accused as Ex. 4 to 10 as also the salwar and kurta of the victim (Ex. 12 and 13) which had been received back from Forensic Science Laboratory, Agra.

17. Constable Ved Prakash PW-7 has testified that on 11.8.2008 he was instructed to hand over the case property pertaining to crime no. 1053/08 versus Altaf for examination in Forensic Science Laboratory, Agra. He had received a sealed bundle from the police station on 11.8.2008 and handed over in the laboratory in sealed condition on 18.8.2008. He had further stated that he reached Agra on 12.8.2008, but on account of holidays in the Laboratory, the case property could not be submitted there. He has proved the relevant entries of GD as also the receipt issued by FSL on 18.8.2008.

18. Dr. R. K. Sharma, PW-8 Radiologist has proved the X-ray examination of the victim as also the X-ray plates and his report as Ex.Ka-7. He has also proved the contents of the report, which have been noted in para-2 of the judgment above.

19. Lady Dr. Chitra Jauhari PW-9 has testified that on 2.8.2008 she was posted in Women District Hospital, Rampur and on that day she had medically examined the victim. She had proved the contents of the report prepared by in her own hand writing as Ex. Ka-5, which had been reproduced in para-2 of the judgment. She had further proved the reports of pathology and radiologist as also her supplementary report as Ex. Ka-8.

20. HC Rajvir Singh PW-10 has testified about registration of the case on the basis of written report of Mehndi Hasan by him on 2.8.2008. The check report and copy of GD regarding registration of the case in the general diary have been proved as Ex. Ka-2 and Ka-15 respectively.

21. Gajram Singh CW-1, Head Master of Primary School, Kheda was examined to prove the photo-copy of the transfer certificate (Ex.C-1) issued in respect of the accused appellant. He has produced the admission register of the school and stated that the date of birth of the accused as per school records is 30.6.1992. This witness was summoned to dispose of the application filed by the accused-appellant claiming himself juvenile.

22. Zakir CW-1 (wrongly mentioned instead of CW-2) has stated that he knows the accused present in the court as also the victim daughter of Mehndi Hasan and both of them are residents of his village. Mehndi Hasan used to do labour work in Punjab and also in his own village. At the time of incident he was working at the tank of Sipattar and on the day of incident he had gone to his in-law and he does not know, who else was at his home on that day. Near the house of the victim there is house of Lalu, which had a chhappar. He had not seen the chappal of Altaf lying under the chhappar. The second day of the incident he came to know about the scuffle between the accused and the father of the victim and he does not know the cause of dispute and 2-4 days thereafter sub-inspector of police came in the village and he did not see him taking clothes of the victim.

23. Sikandar CW-3 has stated that he knows Mehndi Hasan and Altaf whose houses are situated at a distance of 100-150 and 50 steps respectively from his house. The house of Altaf is about 100-125 steps away from the house of Mehndi Hasan. In his presence no talks were held between Altaf and Mehndi Hasan. He had not seen him handing over the clothes of the accused and victim to the police.

24. The incident had taken place on 1.8.2008 at about 7:00 p.m. and at that time the complainant was not at home. He was at his in-laws' place where he received telephonic information through his brother Khursheed PW-5 and he reached the village the same night at about 10:00 p.m. and next day i.e. on 2.8.2008 at about 8.40 a.m. he submitted written report of the incident at the police station. The case was registered and the victim was sent for medical examination. She was medically examined by Dr. Chitra Jauhari PW-9 at 1.30 p.m. on 2.8.2008. Dr. R. K. Sharma PW-8 conducted X-ray examination of the victim in order to ascertain her age and after perusing the X-ray report Dr. Jauhari had submitted supplementary report Ex. Ka-8 on 6.8.2008 opining that the age of the victim is between 16-17 years. The victim PW-2 in her statement recorded on 30.6.2010 has given her age as 15-16 years. In FIR the complainant stated the age of the victim as 14 years. It is pertinent to note here that during her entire cross-examination, the defence has not challenged the age of the victim. Similarly complainant (father of the victim) PW-1 has stated the age of her daughter (victim) on the day of incident as 14-years, but this fact has also not been challenged in his cross-examination on behalf of the defence. Rather a suggestion had been given in the cross-examination that his daughter (victim) was having love affairs with the accused. There is no contra evidence regarding the age of the victim, thus, it is found that the age of the victim on the day of incident was below 16 years.

25. As we have seen above that at the time of incident, the complainant was not in the village and he came in late night on 1.8.2008 after getting information about the incident on phone from his brother Khursheed. The FIR was lodged at 8:40 a.m. on 2.8.2008 and the victim was medically examined at 1:30 p.m. by Dr. Chitra Jauhari PW-9. Thus, there is no delay in reporting the incident to the police and medical examination of the victim. It is trite that prompt reporting of the crime to the police is always considered ideal and safe as it rules out the possibilities of fabrication and concoction of the prosecution story. The prompt FIR rules out embellishment and can safely be considered to corroborate the other part of the prosecution story.

26. The prosecution story as contained in the FIR has been narrated by complainant PW-1 in his deposition before the trial Court. The victim PW-2 has also narrated the manner in which she was ravished by the accused-appellant in the secluded house of Lalu at about 7:00 p.m. on the day of incident. She has further stated that on her noise/alarm Khursheed and Sharaft arrived there and then the accused leaving his clothes and chappal made his escape good. Her examination-in-chief was recorded in the trial Court on 30.6.2010, but on that day the cross-examination was deferred on the adjournment application of the counsel for the accused on his personal grounds. It appears that the learned Presiding Officer was apprehensive about the conduct of the accused persons in getting the case adjourned when the victim was present in the Court for her deposition, so before adjourning the case, the learned presiding officer has asked a very pertinent question to the victim, which is again reproduced below for ready reference:

"To Court - eSa vkt tks c;ku vnkyr esa ns jgh gwW og fcuk fdlh Mj o ncko ds ns jgh gwWA"

This foresightedness of the learned presiding officer is praise worthy, because when she appeared on the adjourned date 16.7.2010 for cross-examination, she had taken a u-turn and has not supported the prosecution story. The State counsel has slept over the matter and did not move an application in the court for declaring the victim hostile and for permission to cross-examine her. However, the vigilant Court has asked certain questions, but it also fell in error when both her previous statements, namely - one recorded by the investigating officer and other recorded by the Court, were not confronted to her. However, it would not make any difference because the facts narrated by the victim to the questions put to her during cross-examination show that she is telling a white lie. The trial Court ought to have drawn proceedings against her for perjury. The hostility of the victim during cross-examination is evidence of the fact that either the complainant's side has entered into an illegal and unethical compromise with the accused or under some threat or coercion the victim and her brother, uncle and cousin PW-3 to PW-5 have not supported the prosecution story. In these circumstances, the learned trial Court has rightly placed reliance on the examination-in-chief of the victim following the law laid down noted on page-18 of the impugned judgment.

27. The victim of sexual assault is not an accomplice, so her testimony may not be viewed with some amount of suspicion. In fact she is the victim of the crime and her testimony stands on a high pedestal more than an injured witness. She would not falsely implicate an innocent, unless there are very compelling reasons for false implication of the accused. Here we may usefully refer to the case Ranjit Hazarika Vs. State of Assam (1998) 8 SCC 635, wherein this Court has held as under:-

"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 ever 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"

28. In the case of State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384, it has been held that a conviction can be founded on the testimony of prosecutrix alone unless there are compelling reasons for seeking corroboration. It is further held that her evidence is more reliable than that of an injured witness.

It was pointed out in paragraph 8 at SCC pp.395-396 as under: -

"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 leveled 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. 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 uniformity 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 a probable".

However, in the instant we find corroboration of the statement of the victim by medical evidence, report of FSL and the testimony of the investigating officer.

29. It has come in evidence of the victim that when the witnesses arrived at the scene of occurrence, the accused made his escape good after leaving his wearing apparels at the spot, which were handed over to the police by the complainant. Similarly the salwar and kurta, which the victim was wearing at the time of incident were also handed over to the investigating officer through memo. Although the public witness of this seizure namely Zakir CW-2 and Sikander CW-3 have not supported this aspect of the prosecution story, but it makes no difference as the formal proof of both the memos in this regard namely - Ex. Ka-9 and Ka-10 had been dispensed with by the learned counsel for the defence and these documents have been proved by their author SSI Ratan Singh PW-6. The report of the FSL Ex. Ka-11 states that on salwar of the victim the Scientific Officer of the FSL found sperms, human semen and blood. The prosecution has also examined Constable Ved Prakash PW-7 who had taken these clothes to the FSL. In this way, we find that the statement of the victim with regard to the crime in question finds full corroboration from the medical evidence and report of FSL.

30. In view of what has been said and done above, we find that the learned trial Court has correctly appreciated the evidence on record of the case and has arrived at a right conclusion about the guilt of the accused-appellant for the offence punishable u/s 376 IPC. He has been appropriately sentenced to undergo seven years' RI, which is the minimum as provided in the statute and fine of Rs. 5,000/- with default stipulation. The appeal sans merits and is accordingly dismissed. The impugned judgment and findings recorded by the trial Court are hereby confirmed.

31. Let certified copy of the judgment be transmitted to the Court concerned for information and record.

(Anil Kumar Sharma, J)

August 14, 2014

Imroz/-