Ramesh @ Baba vs State Of U.P.
2014 Latest Caselaw 6913 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Jail Appeal No. 2535 of 2013
 
Ramesh @ Baba s/o Vishwanathpuri resident of Village Sahimapur P. S. Hussainganj District Fatehpur.
 
			...		...		...		Appellant
 

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

 
Counsel for Appellant : Rahul Mishra, Amicus Curiae
 
Counsel for Respondent : Zafeer Ahmad, AGA. 
 
Hon'ble Anil Kumar Sharma, J.

Challenge in this appeal is to the judgment and order dated 30.3.2013 passed by Sri Vinay Khare, Addl. Sessions Judge, Court No. 9, Agra in S.T. No. 785 of 2011 (State Vs. Ramesh @ Baba) whereby the appellant had been convicted for the offences punishable under sections 363, 366, 376 IPC and had been sentenced as under:

Section

Imprisonment

Fine

Default imprisonment

363 IPC

5-Years' R.I.

Rs. 5,000/-

6-months imprisonment

366 IPC

7-Years' R. I.

Rs. 7,000/-

9-months imprisonment

376 IPC

10-years' R. I.

Rs. 10,000/-

1-year imprisonment

However, all the sentences were directed to run concurrently.

2. Shorn of details, the prosecution story is that on 17.2.2011 Amar Singh s/o Ganpat Singh r/o Shyam Vihar Colony, Ambedkar Park, P. S. Etmadaula, District- Agra submitted his self written report at 2:50 P.M. in police station Etmadaula stating that on 12.2.2011 at 8:00 A.M. his 14-years' daughter was returning home from tuition with other girls. When she reached at the Royal Public School crossing, the appellant, who off and on used to come in his locality told the victim to accompany him as her mother had given birth to a child in the night and he was going to the hospital. In this way, the appellant with one Ramveer enticed away his daughter. It has been further alleged in the report that this incident was witnessed by Rakesh and Pooran Singh while going to factory at Royal Public School crossing. The informant searched for the victim in the village of the accused, Sahimapur and contacted his own relatives but all in vain and he was compelled to feel that either the victim would have been killed or sold. Before getting the FIR lodged, the informant also tried his best to contact the appellant to know whereabouts of his daughter on his phone, but he avoided to say anything about her. On the written report of the first informant the police registered Case Crime No. 99 of 2011 under sections 363, 366 IPC., investigation whereof was entrusted to SI Ram Chandra Saroj. On 20.2.2011 the victim was recovered by the investigating officer from the house of the appellant in the presence of the witnesses and the first informant. After necessary formalities the victim was brought to Agra, where she was interrogated and after medical examination her statement u/s 164 Cr. P.C. was recorded by the Magistrate and on its basis, section 376 was added in the investigation of the case. After completion of investigatory formalities, on the basis of sufficient evidence charge-sheet for the offence punishable under sections 363, 366 and 376 IPC was submitted.

3. After committal of the case to the Court of Session charges for the offences punishable under sections 363, 366 and 376 IPC were framed against the accused-appellant who abjured the guilt and claimed trial.

4. In order to prove its case the prosecution has examined complainant Amar Singh PW-1, his daughter 'victim' PW-2, Dr. Yogesh Pal PW-3, Dr. Neena Gupta PW-4, SI Ram Chandra Saroj PW-5, SI Suresh Pal Singh PW-6 and Constable Ram Sanehi PW-7.

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 stated that at the time of alleged incident he had been collecting some money as subscription and to grab the same, he has been falsely implicated in the case by the complainant. 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 Sri Rahul Mishra, Amicus Curiae, for the appellant, Sri Zafeer Ahmad, 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 contention is that the FIR is inordinately delayed without any explanation; that the prosecution story is concocted and has been set up with oblique motive to grab the money collected by the accused appellant as subscription (Chanda). Moreover, the prosecution story is not corroborated with medical examination report and the site plan. Going beyond the correct perspective of the evidence and circumstances available on record, the learned trial Court has illegally recorded the findings of conviction and had been illegally swayed by the arguments advanced on behalf of the prosecution. He has further submitted that the victim was major and 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 entire prosecution story is well proved through the testimony of witnesses on its behalf during trial. It has been further contended that the appellant was known to the complainant and the victim from before; that explanation for the delay finds place in the written report of the complainant; that the victim was below 16-years' of age, so no question of her consent arises at all; that there are no contradictions in the prosecution evidence. It has been further submitted that the circumstances as also the link evidence are sufficient to prove the guilt of the appellant for the charges levelled against him. Lastly it has also been contended that the learned trial Court has not at all erred in returning findings of guilt against the accused for the offences punishable under sections 363, 366, 376 IPC and appropriate sentence had also 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 the appellant in their examination-in-chief.

11. Complainant Amar Singh PW-1 has corroborated the contents as also the execution of his written report Ex. Ka-1. He has stated that the date of birth of the victim is 4.07.1996. In the morning of 12.2.2011 at 07:00 AM his daughter had gone for tuition but she did not return. His wife was admitted in Agarwal Nursing Home, where she had delivered a child and he was also there. When he returned back home from hospital at about 9 a.m., he came to know his daughter has not returned back. Her friends informed that she had gone with Ramesh @ Baba. Rakesh and Pooran had also informed him that they had seen the victim with Ramesh @ Baba near Royal Public School crossing. She was searched here and there in the relatives, but she was not found. Thereafter he submitted written report in P. S. Etmadaula on 17.2.2011, which was been proved as Ex. Ka-1. He has further stated that the victim was recovered by the police from the house of appellant in village Sahimapur in his presence. He has also proved the recovery memo Ex. Ka-2, supurdginama as Ex. Ka-3 as also the photocopy of High School Admit Card of the victim as paper no. 6 stating that after medical examination and statement of the victim under section 164 Cr.P.C., she was given in his Supurdgi.

12. The Victim, PW-2 has stated that on 12.07.2011 at 08:00 AM she was returning home from tuition along with her friends, then at the Royal Public School crossing the appellant called and made her to believe that he was going to hospital to visit her mother where she has given birth to a child, and asked her to accompany him. She sat in the vehicle, he made her to sniff something and she went unconscious. On getting conscience, she found herself confined in the room of appellant's house in his village where he forcibly established physical contacts without her consent. His brother Kalu helped him in this activity and he too also ravished her. Thereafter, police reached at the house of the appellant along with her uncles and father. She has also testified about her statement under section 164 Cr.P.C. and proved Ex. Ka-4. Identifying the accused-appellant in the trial court she has deposed that the appellant was known to her as he has treated her father. She told that her date of birth is 4.7.1996 and she has passed High School Examination in the year 2011. She has produced her original certificate of High School in the Court and on comparison its photostat copy Ex. Ka-5A was found correct.

13. Dr. Yash Pal Singh PW-3 has stated that on 23.2.2011 he has medically examined the victim to ascertain her age as Addl Chief Medical Officer, Agra on the reference of Lady Medical Oficer. In X-ray examination of wrist, elbows and knee of the victim per x-ray plate Ex. 1, her epiphysis of elbow and knee were found fused. Radius and ulna of wrist were partially fused and on this basis he assessed her to be aged about 18 years. He has proved his report as Ex. Ka-5.

14. Lady Dr. Neena Gupta PW-4 has testified that on 21.2.2011 she was posted in Women District Hospital, Agra and on that day she had medically examined the victim. On examination she has found that there was no injury on her body. She was thin built. Height was 146 cms, weight 35 Kgs, teeth 14/14. Breast were well developed. Axillary and pubic hair were present. Menses had started about a year back. In internal examination also no injury was found and hymen was old torn and vagina orifice admitted two fingers. Vaginal smear was taken and sent to pathology for examination. She has proved the report as Ex. Ka-6. She has further stated that on 24.3.2011 she had prepared supplementary report as Ex.Ka-7 on the basis of pathology report and report of CMO dated 23.2.2011.

15. SI Ram Chandra Saroj PW-5 has deposed that investigation of this case was entrusted to him on 17.2.2011. Testifying about investigatory formalities conducted by him, he has deposed that on the information given by one Sachan on mobile phone of the Incharge of police station, he had recovered the victim aged about 14-years from the house of accused Ramesh @ Baba in village Sahimapur, P. S. Hussainganj, District- Fatehpur on 20.2.2011 at 1.30 p.m. through recovery memo Ex. Ka-2. He has also proved the site plan of the place of recovery as Ex. Ka-11 as also the suprdginama of the victim as Ex.Ka-3. According to him the victim was medically examined on 21.02.2011 and after her statement under Section 164 Cr.P.C. was recorded by the Magistrate, Section 376 IPC was added to the case crime no. 99 of 2011. He has further deposed that efforts were made to nab the accused, but he could not be apprehended till 11.5.2011 and then he was trasnferred.

16. SI Suresh Pal Singh PW-6 has stated that after transfer of S.I. Ram Chandra Saroj P.W.-5 the investigation of this case was assigned to him. He has made efforts to apprehend the accused by obtaining coercive process from the Court. On 28.7.2011 he surrendered in the Court and thereafter his statement was recorded. After completion of investigation, he has submitted charge-sheet Ex. Ka-12 against the accused.

17. Constable Ram Sanehi PW-7 has proved the check report as Ex. Ka-13 prepared by him on computer on the basis of written report of Amar Singh complainant, the father of the victim on 17.2.2011 at 2:50 P.M. He further stated that he has entered the case at report no. 38 in the general diary and its carbon copy has been proved by him Ex. Ka-14.

18. Learned Amicus Curiae has vehemently argued that there is inordinate delay of five days in lodging the FIR, which clearly smells foul play particularly when the complainant came to know about the name of the accused with whom his daughter had gone on the date of incident i. e. 12.2.2011, but the complainant has submitted written report with the police on 17.2.2011. However, on perusal of the written report Ex.Ka-1, we find that the complainant has given elaborate reasons as to why he could not submit his report earlier. In this regard he has noted in his report as under:

"eSaus viuh iq=h dks xkWo lfgekiqj rFkk vius fj'rsnkjksa ls irk fd;k ijUrq mldk dksbZ irk ugha py ldk] eq>s fo'okl gS fd bu yksxks us esjh iq=h dks ekj fn;k ;k dgha csp fn;k gSA jes'k mQZ ckck dk eksckbZy ua0 yxkus ij og esjs dks Vkye Vwy tcko fn;sA ckck dks ekS0 ua0 8953194739 o 9758928086 gSa A eSa viuh iq=h dks vc rd ryk'k jgk FkkA blfy, fjiksVZ fy[kokus ugha vk ldk FkkA"

Thus, we find that the complainant has given more than sufficient and satisfactory reasons in his report for not reporting the matter to the police. The unusual circumstances satisfactorily explain the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay in lodging the FIR and there is possibility of embellishment or exaggeration in the prosecution story on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar Vs. State of Goa (2003 (8) SCC 590). In this view of the matter, the delay in lodging the FIR with the police is of no consequence in this case.

19. The next issue which requires attention of the Court is as to the age of the victim on the date of incident. The complainant in his written report has mentioned the age of his victim daughter as 14-years, which has been corroborated by the victim in her statement u/s 164 Cr. P. C as also given in the Court. The complainant is a literate person, he had disclosed his qualification as 'B.A.' in his deposition before the trial Court and in the 1st sentence of his examination-in-chief after giving the name of his daughter he has stated that her date of birth is 4.7.1996. The victim has brought her original High School Examination, 2011 certificate in the Court and has proved its photo-copy as Ex. Ka-5. Significantly neither the complainant nor the victim have been cross-examined by the defence about the date of birth of the victim.

20 Learned Amicus Curiae had placed reliance on the testimony of Dr. Yashpal Singh PW-3 and Dr. Neena Gupta PW-4 who have assessed the age of the victim as about 18 years. Radiologist Dr. Singh PW-3 has stated in his examination-in-chief itself that if epiphysis of wrist are not fused then the age would be around 17-years, but has added that if the epiphysis of knee are fused then the age would be 17 years. He has fairly stated that they calculate the age only by assessment. The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side. In the case of Jaya Mala Vs. Home Secretary, Government of J & K and others AIR 1982 SC 1297, the Apex Court has held:

"However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."

Similar view was taken in the case of Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681. In the case of State of Uttar Pradesh Vs. Chhotey Lal (2011) 2 SCC 550 the Apex Court has observed-

"There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. We are supported by a 3-Judge Bench decision of this Court in State of Karnataka v. Bantara Sudhakara @ Sudha Anr.(2008) 11 SCC 38 wherein this Court at page 41 of the Report stated as under:

"Additionally, merely because the doctor's evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years' age has to be added to the upper age-limit is without any foundation."

In view of the above as the original High School certificate of the victim was produced for comparison of the photo-copy on record, and the defence could not elicit anything from cross-examination of PW-2, we are of the considered opinion that the prosecutrix was less than 16 years of age on the date of incident and the learned trial Court has not at all erred in calculating the age of the victim.

21. In order to prove the charges levelled against the accused-appellant we have the testimony of the victim only. Her father Amar singh PW-1 is not an eye witness of the incident of enticing away the victim by the appellant. The statement given by the prosecutrix at three stages namely - in her statement under Sections 161 Cr.P.C, 164 Cr.P.C. and in the Court is wholly consistent. The victim PW-2 has also narrated the manner in which she was kidnapped by the appellant and ravished in his own house with the help of his brother Kalu without the consent of the victim. In the absence of any material discrepancies or inconsistencies/ infirmities there are no good reasons to disbelieve her. In the case of Mohd. Imran Khan vs State (Govt. of NCT, Delhi) 2012 Crl.L.J. 693

"15. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `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 of Evidence Act 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. 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. 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. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658; State of U. P. Vs. Pappu @ Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee Vs. State of M. P. (2010) 8 SCC 191).

Thus, the law that emerges on the issue is to the effect that statement of 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.

16. The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly supported by Dr. Reeta Rastogi (PW.2).

17. This view of the Trial Court stands fortified by the judgment of this Court in State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein this Court observed that "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."

Similarly, in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9, it has been observed as under:

"It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are."

22. The evidence of PW-1 and PW-2 clearly show that the accused-appellant was known to them from before, as he used to visit the locality of the complainant. PW-1 has stated in cross-examination that - " vfHk;qDr jes'k mQZ ckck esjs eqgYys esa lHkh ds vkrk tkrk FkkA eq>s Hkh ;s tM+h cwVh nsrk FkkA tM+h cwVh ls esjk bykt djrk FkkA nok ds iSls Hkh ysrk FkkA" This fact has not been denied on behalf of the defence, rather it is admitted to the accused-appellant, as would appear from the suggestion given to PW-1 in cross-examination, where he has stated - " ;g dguk xyr gS fd eSaus nok ds iSls uk fn;s gksA nok ds iSls uk nsus ij fookn gqvk gksA ml fookn dh otg ls eSaus >wBk Qalk;k gksA " In this manner it is quite clear that the accused was known to the victim prior to the incident and she has corroborated this fact in her examination-in-chief.

23. The victim had been recovered by SI Ram Chandra Saroj PW-5 on 20.2.2011 from the house of the accused-appellant, which is situated in village Sahimapur District Fatehpur. SI Saroj has testified the manner in which he had recovered the prosecutrix from the house of the accused-appellant. His statement finds full corroboration from the testimonies of the complainant and victim as also the recovery memo Ex. Ka-2 and the site plan.

24. In view of the above discussion we find that the statements of the complainant and the victim not only corroborate each other, but they are consistent with the FIR as also the other documentary including the medical evidence on record. The learned trial Court has correctly appreciated the evidence on record and has not at all erred in convicting the accused-appellant for the offences punishable u/s 363, 366 and 376 IPC.

25. Now as regards the sentence, learned Amicus Curiae has argued that the accused belongs to a very poor family in as much he could not arrange the services of a lawyer either in the Court below or in this Court. The accused had been in jail through out trial and no bail application was moved on his behalf. This appeal has also been preferred from jail. The argument is that lenient view may be taken in regard to quantum of sentence. On perusal of the original record of the case it is found that the accused is in judicial custody since 28.7.2011, no bail application was filed on his behalf either in the Court of Session or before this Court, he could not engage his private counsel and services of Amicus Curiae were provided to him during trial. After conviction and sentence, the accused-appellant has preferred this appeal from jail and vide order 11.9.2013 Sri Rahul Mishra, Advocate was appointed as Amicus Curiae to argue the appeal on behalf of the appellant. The age of the victim was above 12 years, so provisions of Section 376(2)(f) IPC are not attracted and simply the accused-appellant had been found guilty for the offence punishable under section 376 IPC, apart from 363 and 366 IPC. In these circumstances, in the opinion of the Court, the ends of justice would be met if the sentence of imprisonment u/s 376 IPC only is modified and substituted by 7-years' R.I. in place of 10-years. Similarly considering the poverty of the accused-appellant, the sentence of fine u/s 363, 366 and 376 IPC be substituted by Rs. 1000/-, Rs. 2,000/- and Rs. 5,000/- respectively. The default imprisonment would be one month, two month and six months.

26. In view of what has been said and done above, we find that the accused appellant had been rightly found guilty by the learned trial Court for the offences punishable u/s 363, 366 and 376 IPC. The sentence of imprisonment awarded u/s 363 and 366 IPC is confirmed. However, the sentence of 10-years' RI u/s 376 IPC is substituted by seven years' RI. The sentence of fine imposed by the trial Court is modified and it is directed that the accused-appellant would pay Rs. 1,000/-, 2,000/- and Rs. 5,000/- for offences punishable u/s 363, 366 and 376 IPC respectively. In default of payment of fine, the accused-appellant would undergo additional simple imprisonment of one-month, two-months and six-months respectively. The appeal is partly allowed and the impugned judgment and order stands modified to above extent. The accused-appellant is in jail and he would serve the remainder of his sentence.

27. Sri Rahul Mishra, Advocate would be paid Rs. 5,000/- as honorarium for his services rendered as Amicus Curiae pursuant to order of the Court dated 13.9.2013.

28. Let two certified copies of the judgment be immediately transmitted to the Court concerned for record. The learned trial Court would send one copy of the judgment to the Superintendent of the Jail concerned for conveying the result of the appeal to accused-appellant and also to apprise him of his legal remedy against this judgment. Compliance report be positively submitted to the Court within 6-weeks.

(Anil Kumar Sharma, J)

September 24, 2014

LBY/-