Intezar & Others vs State Of U.P.
2015 Latest Caselaw 2 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Case :- 		CRIMINAL APPEAL No. - 4723 of 2007
 
Appellant :- 		Intezar and others
 
Respondent :- 		State of U.P.
 
Counsel for Appellants :- I.M. Khan, A.K.S. Solanki, Anil
 
		Kumar Singh, Brij Raj Mishra, Dileep Kumar, 			K.K.Dubey, Lav Srivastava, Noor Mohd., P.N. 		Tiwari, Pradeep Kumar, Pradeep Kumar Rai, 			R.B.Sharma, S.K. Srivastava, S.S. Shah, 			Siddharth Pandey, V.  Singh, V. K. Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

This appeal is directed against the judgment and order dated 31.5.2007 passed by learned Additional District & Sessions Judge, Fast Track Court no. 5, Gautam Budh Nagar in S.T. No. 33 of 1999 arising out of Case Crime No. 302 of 1999, under Sections 376(2)(G) and 316/34 I.P.C., Police Station Dadri, district Gautam Budh Nagar whereby all the accused-appellants, having found guilty were convicted and sentenced under Section 376(2)(G) I.P.C. with life imprisonment. A fine of Rs. 10,000/- was also imposed upon each of them. In default of payment of fine, they were to undergo additional imprisonment for 6 months.

We have heard Sri A.K. Singh, learned counsel appearing on behalf of the appellants, learned A.G.A. for the State and perused the records.

The prosecution case, in brief, is that the prosecutrix Smt. Shaukina, wife of Naushad on 6.7.1999 at 10.30 P.M. lodged a written report at Police Station Dadri, District Gautam Budh Nagar mentioning therein that on 4.7.1999 at about 1.00 P.M. when she was going from Ghaziabad to her paternal home situated at village Sadipur Chhidauli, District Gautam Budh Nagar and had reached near the jungle which is only 100 yards away from the abadi of village, all the three accused appellants forcibly overpowered her. They dragged her into the fields. The accused appellant Intezar gagged her mouth, accused Nanhey caught hold of her hands and accused Sher Khan committed rape with her. When she raised alarm, the villagers Yaseen and Tara Chand reached there. Seeing them, all the three accused appellants ran away. The prosecutrix on reaching home told about the occurrence to her mother and 'Bhabhi'. As her brother was outside the village at that time, she due to fear could not dare to go to the police station to lodge the report on the same day. The next day, when her brother reached the village, she alongwith her brother and other family members went to police station to lodge the report. On the basis of the written report submitted by her, Case Crime No. 302 of 1999 under Section 376(2)(g) I.P.C. was registered against all the 3 persons named in the F.I.R. and the matter was investigated. The police recorded the statements of witnesses. The prosecutrix was sent for medical examination and the doctor conducting her medical examination found the following injuries on her body :

1.A linear bruise of 2.5 cm. long below 4 cm. angle of right mandible, bruise is of brown colour over neck.

External examination :- No mark of injury present. Fresh blood is coming from vaginal orifice.

Internal examination : - According to the statement of prosecutrix she was pregnant of 1 ½ months. She started bleeding immediately. Size of uterus normal, soft in consisting. External O.S. Orifice extended, fresh blood is coming through O.S.

After completing the investigation, the police submitted charge-sheet against the appellants.

The case being exclusively triable by the court of sessions was committed to the sessions court where charges were framed against all the accused persons who denied from the same and claimed their trial.

The prosecution in order to prove its case has produced 6 witnesses in all, out of which 3 witnesses are of witnesses of fact and 3 are of formal nature. P.W. 1 is the prosecutrix herself. P.W. 2 is Yaseen who is named as an eye witnesses in the F.I.R. itself and P.W. 3 is Tara Chand, whose name also finds place in the F.I.R. P.W. 4 is Dr. Madhu Sharma who has medically examined the prosecutrix on the very next day of the occurrence. P.W. 5 Maharaj Singh is the Head Constable who has prepared the check report of the case and has made necessary entries in the G.D. P.W. 6 is Bharat Singh, the pairokar of P.S. Dadri, district Gautam Budh Nagar who has given the secondary evidence on behalf of Investigating Officer of the case by stating that the I.O. of this case Sri R.P. Somvanshi has been retired and is suffering from cancer since last one year. He being his colleague is well acquainted with his hand writing and he can properly identify it. P.W. 6 has proved the documents prepared by I.O. during investigation.

After conclusion of the prosecution witnesses, the statement of the all the accused persons under Section 313 Cr.P.C. was recorded in which they denied from the charges. However, neither any one of them claimed his false implication due to any reason nor any defence evidence was adduced by them.

Out of all the 3 material witnesses, two witnesses P.W. 2 and P.W. 3 turned hostile in this case and both of them took the stand that on the date of occurrence they were not present in the village.

Thus, the present case rests only on the sole testimony of the prosecutrix-P.W. 1.

The law is well settled that in rape cases, the courts may rely on the uncorroborated evidence of the prosecutrix because the very nature of offence of rape makes it difficult to get direct corroborating evidence. However, as every criminal case stands on a separate footing, the court is free to look for some corroboration, if the statement of the prosecutrix appears unreliable.

To come to a correct conclusion, it is necessary to have a careful analysis of the sole witness/prosecutrix in this case.

P.W. 1 the prosecutrix has stated that all the 3 accused persons - Intezar, Nanhey and Sher Khan are the neighbours of her brother-in-law (Jeeja). Their houses are situated after 1 or 2 houses from her parental home. Sher Khan and Intezar are married and Nanhey is single. On the date of occurrence, she was coming from her matrimonial home and was going to her parental home. When she reached at the jungle situated near her village Sadipur Chhidauli, the accused persons obstructed her way. The accused Intezar pressed her mouth, Nanhey caught her hands and Sher Khan committed rape with her. Hearing her shrieks the villagers Tara Chand and Yaseen reached there. Seeing them, the accused persons ran away from the spot. She has further stated that at the time of occurrence she was pregnant with 1½ months. Due to her rape, she had an abortion. After the occurrence, she reached her "Mayka" and informed her mother and Bhabhi about the incident. At that time her brother was not present in the house, who returned in the evening of the next day, therefore, they went to the police station on 6th July, 1999 and lodged the report. She has stated that the report was scribed by Gram Pradhan Mukarram. He had written exactly the same facts she had dictated to him. She has identified her thumb impression on the written report, Ext. Ka. 1. She has further stated that after lodging the report she was sent for medical examination to Government Hospital, Dadri alongwith policemen.

The prosecutrix has been cross-examined at length on 3 days with intervals. During her cross-examination she has stated that she knows the appellants since prior to her marriage. Her marriage was performed 6 years ago. She has a daughter aged about 2 years. She has stated that on the day of occurrence she was going to her Mayka so that she could keep with her brother, the money which she had saved. As her husband was a drunkard, she thought it safe to keep the saved amount with her brother. It has also been alleged by her that the accused persons also snatched those Rs. 3000/- along with the gold earrings, she was wearing at that time. She has further stated that her husband reached at her Mayka on 6th July. She has stated that she was carrying her daughter in her lap who fell down when she was being dragged by the accused persons to the fields.

The record shows that the prosecutrix has faced gruelling cross examination on different dates with a gap of 3 or 4 months in between, but she has been throughout consistent and cogent in her testimony with regard to time, place and manner of the occurrence and also about the roles played by each of the appellants while committing the incident. The prosecutrix is a rustic Pardanasheen lady who has beeReserved

n repeatedly asked disturbing questions about the manner of commission of rape by the defence counsel but her statement is remained unshaken. There does not appear any material contradictions in her statement except at one place where she has stated that all the appellants had committed rape with her but she has immediately corrected herself by stating that only Sher Khan had committed rape with her and the other two appellants had assisted him by pressing her mouth and holding her hands.

The medical examination report corroborates her testimony as it clearly shows that the doctor has found fresh blood coming out from her vaginal orifice. Besides it a linear bruise has also been found on her right mandible over her neck which supports her version of gagging of her mouth by appellant-Intezar.

Although P.W. 2 Yaseen, has turned hostile yet the following part of his statement where he has stated that the brother of Shaukina was a labour and the family of Shaukina belonged to the class living below poverty line whereas the accused persons were the "Chaudharies" of village and were very powerful and "Dabang" people is relevant and reflects the reason for his becoming hostile. Although P.W. 2 has denied the suggestion given by learned A.D.G.C. to him that due to fear of accused persons he is not deposing the true facts, the possibility can not be ruled out that the accused persons being of a higher social status, no one could have dared to depose against them.

P.W. 3 Tara Chand has also turned hostile but his statement also reveals the reason for his turning hostile. He has stated that the entire village abadi consists of Muslim families except 15 or 16 houses which belong to Hindus. As P.W. 3 is a Hindu so the possibility cannot be ruled out that due to fear of appellants (who are Muslims), P.W. 3 could not have dared to give evidence against them.

Learned counsel for the appellants has challenged the correctness and legality of the impugned judgment of conviction mainly on two grounds. Firstly, that the learned trial judge has ignored the fact that there is inordinate delay in lodging the F.I.R. of this case without any plausible explanation for the same and secondly except the sole testimony of prosecutrix there is no corroborative evidence of any other witness in this case.

We do not find any force in the arguments advanced by learned counsel for the appellants.

So far as the delay in lodging the F.I.R. is concerned, the delay has been properly explained by the prosecutrix in her deposition that at the time when she reached her parental home after the occurrence, only her mother and 'Bhabhi' were there, so she did not go to lodge the F.I.R. due to fear of the appellants as no male member was there to accompany her. Her brother came back in the evening of 5th July and then she went to lodge the F.I.R. in the morning of 6th July. The distance of the police station from the place of occurrence was 8 Kms. Keeping in view the fact that in village the means of conveyance are hardly available and specially after sunset, no transport was available, the delay in lodging the F.I.R. appears to have sufficiently been explained by P.W. 1. Moreover, the appellants are distant uncles of prosecutrix, so there may be some hesitation to lodge F.I.R. against them.

The Supreme Court in the case of State of Himanchal Pradesh Vs. Gian Singh; 2001 Cri L J 2548 and Gurmit Singh Vs. State of Punjab; (1999) 2 SCC 384 has observed as under :

"Delay in lodging FIR could not be used as a ritualistic formula for doubting prosecuting case as in incident like rape when the perpetrator of the crime happens to be member of family or related therewith involves the honour of the family and therefore, there is reluctance to report the matter to the police and carry the same to the Court. A cool thought may proceed lodging of FIR.

There was no difficulty, in identification of the accused persons with the prosecutrix, as all of them resided in the same village and in the same locality where the Mayka of the prosecutrix was situated. The occurrence was of noon at 1.00 P.M. in the month of July, when there was sufficient sun light. It is also noteworthy that all the accused persons have not stated anything about their innocence or false implication or even about any enmity with the prosecutrix in their statement recorded under Section 313 Cr.P.C. There does not appear any reason why the prosecutrix would falsely implicate them at the cost of her own prestige and self respect. The well settled legal position with regard to cases of rape is that the conviction in these cases can be based on uncorroborated evidence of prosecutrix, if it inspires confidence.

The Apex Court in the case of Moti Lal Vs. State of M.P.; 2008 Cri L J 3543 has observed as under :

"It needs emphasis that the physical scar on a rape victim may heal up, but the mental scar will always remain. When a woman 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, when 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 bounded by legal jugglery.

It has also been repeatedly held by the Supreme Court that the evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions because these are naturally to occur in her statement while facing a lawyer who often puts offensive and disturbing questions to her.

In Radha Vs. State of M.P.; 2007 Cri L J 4704(SC) it has been held that :

"the evidence of prosecutrix should not be rejected on the basis of minor discrepancies and contradictions."

Now reverting back to the facts of the case before us, all the 3 appellants have been assigned separate roles and they have been charged with the offence of gang rape with the help of Section 34 of I.P.C. Hence, it does not make any difference if the act of rape has actually been committed by appellant Sher Khan only in view of the law laid down by Hon'ble Apex Court in the case of Ashok Kumar Vs. State of Haryana; AIR 2003 SC 777 in which the Apex Court has held :

"In order to establish an offence under Section 376(2)(g) the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them."

The learned trial court also found the prosecution story trustworthy while relying on the sole testimony of the prosecutrix and convicted the accused persons for the offence of gang rape and for the reasons discussed above, we do not find any reason to interfere in the findings arrived by learned trial court.

The following rulings have been cited by learned counsel for the appellants in support of his contentions :

1.AIR 2012 SC 1357; Ramnaresh and others Vs. State of Chhatisgarh

2.AIR 2008 SC 2965; Mahila Vinod Kumari Vs. State of Madhya Pradesh

3.AIR 2008 SC 2222; Viswanathan and others Vs. State rep. by Inspector of Police, Tamil Nadu

4.AIR 2010 SC 3813; Musauddin Ahmed Vs. State of Assam

5.AIR 2009 SC 2644; State of Rajasthan Vs. Hemraj and another

After a careful perusal of these judgements we are of the firm view that none of these judgements is helpful to appellants because the facts of all these cases cited by learned counsel for appellants are entirely different from the facts of present case.

Every criminal case stands on a different footing and therefore the verdict of a criminal case can not be blindly followed as a precedent in another case without looking into the facts peculiar to each case.

Keeping in view the facts and circumstances of the case, there does not appear any ground to interfere in the judgment passed by learned trial court. The appeal being devoid of merit is liable to be dismissed.

The appeal is accordingly dismissed. The appellants Intezar and Nanhey have been granted bail by this Court on 22.3.2012 whereas appellant Sher Khan is already in jail. He shall remain in jail to serve out the sentence awarded by the trial court and affirmed by us. The appellants Intezar and Nanhey shall be taken into custody forthwith to serve out the sentence awarded by the trial court and affirmed by us.

A copy of this order be immediately sent to the court concerned for compliance. A compliance report shall be sent to this Court forthwith by the learned lower court after compliance of this order.

Dated :  April    17, 2015.
 
S.B.