Atul Kumar Jaiswal vs State Of U.P.
2014 Latest Caselaw 5182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
Court No. - 25                                                                   RESERVED
 
Case :- CRIMINAL APPEAL No. - 555 of 2009
 
Appellant :- Atul Kumar Jaiswal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dhananji Kumar Tripathi,Anoop Kumar Upadhyay,Dinesh Chandra Shukla,Krishna Kumar Verma,Laxmi Kant Bhatt,Manoj Kumar Mishra,Nadeem Murtaza,Rajendra Kumar
 
Counsel for Respondent :- G.A.
 

 
*****
 
Hon'ble Aditya Nath Mittal,J.

Heard learned counsel for the appellant, learned Additional Government Advocate and perused the record.

This criminal appeal has been filed against the judgment and order dated 28.02.2009, passed by the then learned Additional Sessions Judge, Court No.1, Gonda in S.T. No.215 of 2008, by which the appellant has been convicted for the offence punishable under Section 376 I.P.C. with an imprisonment of ten years and a fine of Rs.5000/-.

The prosecution case in brief is that the complainant had gone to Delhi on 20.02.2008 regarding his business. His daughter aged about 15 years was alone in the house. On 21.02.2008, at about 7.00 p.m., the appellant entered into house of the complainant and committed rape with his daughter. His daughter was also threatened for dire consequences. When he came back, he came to know about the incident. The daughter of the complainant was medically examined on 26.02.2008 and after investigation, the charge-sheet was filed against the appellant for the offence punishable under Section 376 I.P.C. The appellant had denied the charges and claimed trial.

The prosecution has examined the complainant as PW-1, who has stated that he had gone to Delhi for purchasing some goods and when he came back on 25.02.2008 then his children told that on 21.02.2008 at 7.00 p.m. the neighbour Atul Kumar Jaiswal has entered into the house. The victim had told that at that time Deepak and Dipika had gone outside to play and Atul Kumar Jaiswal had committed rape with her. The First Information Report has been proved as Ext. Ka-1.

The victim has been examined as PW-2, who has stated that on 21.02.2008 at about 7.00 p.m. when she was all alone in her house then the appellant had entered into her house from back side and had committed rape against her will. She has further stated that after committing rape he had run away from back side and at that time his sister Dipika had seen him. While going, the appellant had threatened for dire consequences. Her father had come back on 25.02.2008 and her sister had told about the incident to him. Upon which, her father had asked her and she told the incident to her father. On 25.02.2008, the police had also come to her house and had also recorded her statement. She was medically examined on 26.02.2008. She had not told about the incident to other neighbours because they were not on talking terms.

Dr. Ram Gopal PW-3 has stated that on 26.02.2008 he was posted as Medical Officer and he has examined the victim and had prepared the medical examination report. The medical examination reports have been proved as Ext. Ka-2 and Ka-3.

Senior Sub-Inspector K.K.Pandey PW-4 has proved the investigation of the case and the formal papers of the prosecution. The site plan has been proved as Ext. Ka-5. The charge-sheet has been proved as Ext. Ka-6. Constable Moharrir Mahe Ram PW-5 has proved the Chik F.I.R. as Ext. Ka-7. and copy of the G.D. as Ext. Ka-8.

After prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which, he had denied the evidence and has stated that there is dispute between two families regarding the trees on the disputed land. He has been falsely implicated.

In the defence, Om Prakash DW-1 has been produced, who has stated that on the government land there is tree regarding which there is dispute between the parties since 2-3 years. Suresh Chandra Jaiswal DW-2 has also stated that there is dispute regarding Eucalyptus trees between the parties.

After appreciating the evidence on record, the learned court below came to the conclusion that appellant is guilty for the offence punishable under Section 376 I.P.C. Accordingly, convicted him with an imprisonment of ten years with a fine of Rs.5000/-.

Learned counsel for the appellant has submitted that complainant was not present on the date of incident. The occurrence has taken place on 21.02.2008 while the report has been lodged on 25.02.2008. In the medical examination, the age of the victim has been found to be 16-17 years. Therefore, she was a consenting party. The younger sister of the victim Dipika is alleged to have seen the accused while he was escaping, but she has not been examined by the prosecution. It has also been submitted that in the medical examination, the hymen has not been fractured. Therefore, it cannot be said that rape was committed. It has also been submitted that at the most it may be a case of Section 354 I.P.C. In the last, learned counsel for the appellant has submitted that appellant has remained in Jail for about 42 months, therefore, a lenient view may be taken.

Learned Additional Government Advocate has defended the impugned judgment and has submitted that there is no material contradiction in the statements of the witnesses and for convicting an accused for the offence of rape, statement of the victim does not require any corroboration.

From the judicial decisions rendered by the Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus ;-

(i) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge.

(ii) There may be circumstances in a given case which might make it safe to dispense with such a corroboration.

(iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated thus:

(a) circumstances showing on the part of prosecutrix an animus against the accused;

(b) where the question of want of consent is material, circumstances tending to show consent e.g. absence of material showing an attempt at resistance, absence of any marks of struggle;

(c) attempt at improvement or exaggeration in the version as attempted by the prosecutrix;

(d) conduct on the part of the prosecutrix inconsistency with the credibility of the version e.g. omission to make a disclosure at the earliest opportunity:

(e) element of artificiality or unnatural-ness in the story as attempted by the prosecutrix, and

(f) absence of signs of rape in the findings of the medical examination or on chemical analysis.

As far as delay in lodging the First Information Report is concerned, as per the First Information Report itself, the complainant had gone to Delhi on 20.02.2008 and came back on 25.02.2008 whereas the incident took place on 21.02.2008. The victim has stated in her statement that because she was not having talking terms with the neighbours, therefore, she has not told about the incident to the neighbours. Admittedly, the victim was minor on the date of incident and her younger brother and sister were also minor on the date of incident. The complainant was not present at the house and he had come back on 25.02.2008. The report has also been lodged on 25.02.2008. In these circumstances, the explanation extended by the prosecution is sufficient.

It has also been submitted by learned counsel for the appellant that the victim was a consenting party.

An inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 I.P.C. refers to the expression "Consent" and describes what is not consent.

For the purpose of Section 375, voluntarily participation is required after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

In the case of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113 Hon'ble the Apex Court has interpreted the word "consent" as under:-

"'Consent' is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn if only based on evidence or probabilities of the case."

It has been further held that the consent is intended by Sections 375 and 376 IPC should not be under a misconception of fact.

In the case of Deelip Singh alias Dilip Kumar vs. State of Bihar reported in (2005) 1 SCC 88, Hon'ble the Apex Court has held that:-

"In the matter of consent, the court has to see whether the person giving the consent had gone it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. alleged offender is concious of the fact or should have reason but think that but for the fear or misconception, the consent would not have been given."

Learned counsel for the appellant has further submitted that in the medical examination report, no injuries were found on the body of the victim, therefore, the incident is doubtful.

In the case of Santosh Kumar vs. State of M.P. reported in (2006) 10 SCC 595, the Hon'ble Apex Court has held that mere fact that no injuries were found on her private parts, cannot be a ground to hold that no rape was committed upon her. Again in the case of State of Rajasthan vs. N.K. (accused) decided on 30.03.2000, the Hon'ble Apex Court has held that the absence of injuries and delay in the First Information Report cannot be a ground to disbelieve the prosecution story, if otherwise found reliable.

Learned counsel for the appellant has submitted that in the medical examination, the hymen has been found to be intact. Therefore, it cannot be said that rape has been committed.

In the case of Ranjit Hazarika vs. State of Assam reported in (1998) 8 SCC 635, the Hon'ble Supreme Court has held as under:-

"The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, , nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on "no reasons".

In view of the settled position of law, I do not find any substance in the submission of learned counsel for the appellant that because the hymen was not fractured, therefore, the rape cannot be said to have been committed.

In the case of Madan Gopal Kakkad vs. Naval Dubey and another reported in (1992) 3 SCC 204, the Hon'ble Supreme Court has held that even slightest penetration of penis into vagina without rupturing the hymen would constitute rape.

The statement of victim has to be scrutinized in the light of the above settled position of law.

The plea of enmity has been taken by the accused regarding the dispute of the trees. In this regard, two defence witnesses have been examined. All these witnesses have stated that this dispute was since 3-4 years between the parties, but they have admitted that there was no quarrel or any Marpeet regarding this dispute.

It has also come in their statements that there was Panchayat regarding the said dispute. The dispute of a tree cannot be said to be a such dispute due to which the complainant shall put on stake the future of his young daughter. In the traditional non-permissive bounds of society of India, no girl or woman of self-respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle.

In the present case, the prosecutrix has been cross-examined elaborately and every minute point of rape has been asked in the cross-examination. She has been cross-examined very brutally and inhumanly and I fail to understand that why the Presiding Officer has not stopped defence counsel from asking such a vulgar questions. However, the Presiding Officer has recorded the demeanor of the witnesses and has stated that during such a brutal cross-examination, she started weeping in the court. Despite of all these odds, the prosecutrix has supported the incident of rape and has specifically stated that when she was all alone in her house, the appellant had entered into the house from back side when she was sitting in her room. She has further stated that at that time her younger brother and sister were not present and they had gone outside for playing. It is also not in dispute that father of the complainant was also not present on the date of incident and he was out of station. She has explained every minute detail of the incident of rape and even she has mentioned that there was some white flewed after rape. The testimony of the victim has been tested from every corner, but she has again and again supported the incident saying that she was forcefully raped by the appellant and when he was escaping from back door, he had also threatened for dire consequences.

I do not find any unnaturalness or any attempt for improvement or exaggeration of the version and the statement of the prosecutrix is constant. I also do not find any alienation or exaggeration or unnaturalness in the story as attempted by the prosecutrix. There is no material contradiction in the statement of the prosecutrix and her statement is fully reliable.

Learned counsel for the appellant has also submitted that another witness of Dipika, who has seen the accused while he was escaping, but she has not been produced by the prosecution. The quality of the evidence has to be seen and not the quantity of the evidence. Admittedly, the prosecutrix was minor on the date of incident. Therefore, her younger sister was also minor on the date of incident. It is settled position of law that no corroboration is required for convicting an accused in case of rape if the statement of the prosecutrix is found trustworthy.

In the present case, I do not find any ground to disbelieve the statement of the victim. I also do not find any substance in the submission of learned counsel for the appellant that at the most it is a case of Section 354 I.P.C. In the cross-examination, it has come that accused has also discharged his semen upon the victim and a slightest penetration is sufficient for constituting the offence of rape. In these circumstances, it cannot be the case of Section 354 I.P.C. only.

I do not find any substance in the submission of learned counsel for the appellant that the victim was a consenting party. Learned counsel for the appellant could not answer the query of the court during the course of argument that why the appellant had entered into the house of the complainant when the daughter of the complainant was all alone. In the evidence, it has also come that appellant had threatened for dire consequences. If it was a case of consent, then why the appellant had threatened for dire consequences. In these circumstances, I do not find any substance in the submission of learned counsel for the appellant.

The medical examination has been proved by Dr. Ram Gopal PW-3 and the investigation of the case and formal papers have been proved by the Senior Sub-Inspector K.K. Pandey PW-5 and constable Muharrir Mahe Ram PW-5. The alleged enmity has been attempted by the appellant but has not been proved.

Learned Additional Session Judge, Gonda has also considered the evidence on record and has critically examined each and every aspect of the matter. From careful scrutiny of the evidence on record, I am also of the view that the prosecution has succeeded in proving the guilt of the appellant beyond any reasonable doubt. The conviction of the appellant for the offence punishable under Section 376 I.P.C. is upheld.

As far as quantum of punishment is concerned, the appellant has been convicted with an imprisonment of ten years with a fine of Rs.5000/-.

Learned counsel for the appellant has submitted that on the date of incident, the appellant was about twenty one years of age and it was a mistake of childhood, therefore, a lenient view may be taken. In the statement of Section 313 Cr.P.C. which has been recorded on 16.02.2009, the appellant has stated that his age as twenty two years. The incident took place on 21.02.2008, which goes to show that appellant was twenty one years old at the time of incident.

The perusal of record also goes to show that the appellant was arrested on 26.02.2008 and was released on bail by this Court by order dated 04.09.2008 and the bail bonds were filed on 06.09.2008. In this way, he has remained in Jail for about six and half months. The appellant was convicted by the judgment and order dated 28.02.2009 and he has been granted bail by this Court by order dated 13.01.2012 and the bail bonds have been filed on 18.01.2012. In this way, the appellant has remained in Jail for about thirty five months.

Section 376 I.P.C, as it stood before Amendment Act No.13 of 2013, provides that the Court may for adequate and special reasons to be mentioned in the judgment, impose the sentence an imprisonment for a term of less than seven years. The accused has to be dealt with in accordance with law as it stood on the date of incident. The appellant has remained in Jail for about forty two months.

Considering all these facts and circumstances of the case and the age of the appellant, I am of the view that the period already undergone along with a fine of Rs.25,000/- (Twenty Five Thousand) shall met the ends of justice.

The appeal is, therefore, dismissed. The sentence awarded to the appellant is modified to the period already undergone along with a fine of Rs.25,000/- (Twenty Five Thousand). Out of which, an amount of Rs.20,000/- (Twenty Thousand) shall be paid to the victim. In default of payment of fine, he shall further undergo an imprisonment of six months. The appellant is directed to deposit the amount of fine aforesaid, within a period of one month from today. Failing which, the trial court shall be at liberty to take coercive action against the appellant.

Office is directed to send the certified copy of this order to the court concerned along with lower court record, at an early date, for compliance and necessary action.

Order Date :- August 28th, 2014

Suresh/