Kalu @ Om Veer vs State Of U.P.
2015 Latest Caselaw 1833 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED                                                                            AFR
 
Court No. - 41							        
 
Case :- CRIMINAL APPEAL No. - 4671 of 2013
 
Appellant :- Kalu @ Om Veer
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Manoj Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Mohd. Tahir,J.

This criminal appeal has been filed against the judgment and order dated 7.10.2013 passed by Addl. Sessions Judge Court No.4 Aligarh in ST No.702 of 2007 State vs. Kalu @ Om Veer, under Section 376 and 506 IPC P.S. Gonda District Aligarh whereby the accused appellant has been convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- with default clause. The trial court had further convicted the accused appellant under Section 506 IPC and sentenced him to undergo R.I. for one year.

2. The prosecution case, in brief, is that one Satya Prakash son of Sri Lekhraj resident of village Nagla Balram P.S. Gonda District Aligarh had lodged a written report (Ext.Ka.2) in P.S. Gonda on 8.5.2007 at about 6.30 p.m. According to the First Information Report, the sister of the first informant (hereinafter referred to as 'the prosecutrix') on 8.5.2007 at about 5 o'clock in the morning went to ease herself in the jungle. As soon as she reached beside the field of Chari of one Suraj Pal singh, accused appellant Kalu @ Om Veer with bad intention had forcibly dragged her sister inside the field of Chari and began to commit rape upon her. On the cry of her sister, witnesses Punjabi son of Nanua Ram, Suresh son of Bhikamber and Bhupendra son of Punjabi had rushed towards the field of Chari and on seeing them the accused appellant had fled away leaving her sister behind him and he had also extended threat while fleeing away. The witnesses tried to catch him hold but he managed to escape.

3. On the basis of the aforesaid First Information Report (Ext.Ka.2) constable clerk Vijendra Singh (PW-6) prepared the Chick FIR (Ext.Ka.8) and registered the case at Crime No.189/07 under Section 376 and 506 IPC against the accused and also made an entry in that regard in the General Diary of the police station.

4. The investigation of this case was entrusted to S.I. Raj Kumar Tyagi (PW-5) who after making inspection of the spot prepared the site plan (Ext.Ka.6) and after completing the investigation submitted charge sheet against the accused appellant under Section 376, 506 IPC which is Ext.Ka.7.

5. The trial court framed the charges against the accused appellant under Section 376 and 506 IPC. The accused appellant denied the charges and claimed to be tried.

6. The prosecution in order to prove its case examined six witnesses in all. Out of them PW-1 is is the prosecutrix. PW-2 Satya Prakash is the complainant/first informant of this case. PW-3 is Dr. B. Kuldeep and PW-4 is Dr. R.R. Tyagi. Dr. B. Kuldeep had medically examined the said prosecutrix and Dr. R.R. Tyagi had got the x-ray of the elbow, wrist and knee of the prosecutrix done under his supervision. PW-5 is S.I. Raj Kumar Tyagi, who is the Investigating Officer of this case. He proved the site plan of the spot (Ext.Ka.4) and the charge sheet (Ext.Ka.7). PW-6 is constable clerk Vijendra Singh who proved the Chick FIR (Ext.Ka.8) and the extract of G.D. Regarding the registration of the case in question.

7. PW-3 Dr. B. Kuldeep conducted the medical examination of the prosecutrix and prepared his report (Ext.Ka.3) in this regard. According to this report (Ext.Ka.3), the medical examination of the prosecutrix was conducted on 9.5.2007 at 11.05 a.m. According to the said report, following condition of the prosecutrix were found:

General examination

Teeth C/A = 7 + 7 Breast developed

7 + 6 Axillary and public

Weight = 45 kgs. hair present

Height = 5' 1"

Local examination

No marks of injury on private parts of the body. Hymen old and torn. Vagina admits two fingers easily. Vaginal smear taken for detection of spermatozoa by pathological examination. For age advised x-ray of right wrist, knee and elbow joint.

Supplementary medical report (Ext.Ka.4) of the prosecutrix was prepared. According to this report, no spermatozoa was found in the swab of the vaginal smear of the prosecutrix and the age of the prosecutrix was found more than 18 years at the time of her medical examination. No opinion about rape of the prosecutrix could be given by the doctor.

8. The accused appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution version and further stated that the said prosecutrix had deposed against him due to enmity and other witnesses also had wrongly deposed against him; that he has been falsely implicated in this case. He has further stated that he came to his village along with his family members as he was newly married, that some quarrel took place between complaint Satya Prakash and his uncle and because of that quarrel he has also been implicated in this case.

9. In defence the accused appellant examined one Prem Pal as DW-1.

10. The trial court after hearing the counsel for both the sides and perusing the evidence on record, convicted the accused appellant of the offence punishable under Section 376 IPC and sentenced him to undergo R.I. for seven years and to pay a fine of Rs.5,ooo/- and had further directed that in case of non-payment of fine the accused appellant will have to undergo further R.I. for three months. The trial court had further convicted the accused appellant under Section 506 IPC and sentenced him to undergo R.I. for one year. Both the sentences of imprisonment were directed to run concurrently. It was directed that the amount received from the recovery of fine shall be paid to the victim as compensation under Section 357 IPC.

11. Aggrieved by the aforesaid judgment and order of the trial court, the accused appellant has filed this criminal appeal.

12. I have heard learned counsel for the accused appellant, learned AGA for the State and perused the evidence on record.

13. Learned counsel for the accused appellant has submitted that the said prosecutrix was major at the time of occurrence in question and her age as per medical evidence was above 18 years at that time; that according to medical evidence no injury either internal or external was found on her person and that no spermatozoa was also found in her vaginal smear. So she was a consenting party and if any intercourse was done with her, that was done with her consent. So the court below has erred in convicting and sentencing the accused appellant.

On the other hand, learned AGA has supported the impugned judgment and order of the court below and has further submitted that the prosecutrix was an unmarried girl at the time of occurrence in question and no unmarried girl or her family members would fabricate false case of rape against anyone and that the prosecution case is fully supported by the testimony of the prosecutrix. So the accused appellant has been rightly convicted and sentenced by the court below.

14. I have considered all the rival submissions of the counsel for both the parties.

15. It is true that as per medical evidence the age of the prosecutrix was above 18 years and it is also true that as per medical evidence no injury was caused to her, but these two factors only cannot suggest that the prosecutrix was a consenting party because the prosecutrix (PW-1) has clearly stated in her statement on oath that on the day of the occurrence at 5 o'clock in the morning when she went to ease herself beside the Chari field of one Suraj Pal Singh, accused appellant Kalu @ Om Veer came there and he had grappled her. The other two persons namely Harish Chandra and Kishan were also present there along with him. Harish Chandra had caught hands of the prosecutrix and Kishan had a Tamancha in her hand. They asked the prosecutrix to keep mum otherwise they would kill her. She tried her best to rescue from their clutches but in spite of her best efforts accused appellant Kalu @ Om Veer dragged her inside the field of Chari and had ravished her. On her screams, her uncle (Tau), his son Bhupendra and one Suresh had come on the spot. The accused appellant had also extended threat to kill her. Thus, in her examination-in-chief she had categorically stated that it is the accused appellant who forcibly committed rape upon her. Her statement finds support from the position of the spot as was observed by the Investigating Officer (PW-5) S.I. Raj Kumar Tyagi who in his cross-examination had stated that the crop of Chari was about six feet high in the field of Suraj Pal and on the place where the offence of rape was committed the Chari crop was not found in standing position but the same was found in laying down and in trampled position and from that it appeared that some incident of Chheena-Jhapati had taken place there. So absence of injuries on the person of the prosecutrix is not an evidence of falsity of the allegations or the evidence of consent on the part of the prosecutrix. Hence there is no reason or ground to disbelieve the statement of the prosecutrix that she was forcibly subjected to sexual intercourse by the accused appellant.

16. Learned counsel for the accused appellant has also submitted that the testimony of the prosecutrix finds no support from the testimony of some independent witness as the witness (PW-2) Satya Prakash is the real brother of the prosecutrix and no other witness has been examined by the prosecution in support of its case. So it is not safe to act upon the tesimony of the prosecutrix. I find no force in this contention also because the prosecutrix cannot be categorized as an accomplice. She is the victim of the crime and she is just like an injured witness. So her testimony need not be corroborated by the testimony of any other independent witness. However, in the present case, her testimony finds support from the statement of PW-2 Satya Prakash who had clearly stated that he and other witnesses chased the accused to catch him but he had managed to escape from the spot.

17. Learned counsel for the accused appellant has further submitted that in this case the FIR was lodged after about 13-1/2 hours of the occurrence in question and no satisfactory explanation of this delay has been given by the prosecution. So the FIR (Ext.Ka.2) has no corroborative value. I find no substance in this contention also because in such type of cases a person thinks again and again before going to police station or court to initiate the legal proceedings as the fate of the unmarried girl and the honour of her family remains at stake. In the present case, the FIR was lodged the same day and in the FIR there is clear mention that the prosecutrix was forcibly ravished by the accused appellant who had escaped from the spot extending threat to kill the complainant and other witnesses. Thus, regard being had to the facts and circumstances of the matter there is no extraordinary delay in lodging the FIR and the FIR has its corroborative value and supports the prosecution case.

18. Learned counsel for the accused appellant has assailed the impugned judgment and order of the lower court on this ground also that the lower court has not properly appreciated the defence version and the defence in evidence because there was clear and categorical statement of DW-1 Prem Pal who in his statement inter alia had stated that on 8.5.2007 he and the accused appellant had come from Delhi by train to Aligarh at around 6 o'clock. They had come to their village from Delhi to participate in some Triyodashi Sanskar function and that the accused appellant is living in Delhi in Swaroop Nagar colony for the last about 30 years and he is the driver at Harish Cloth House and that the accused appellant was arrested on 9.5.2007 at 8.30 a.m. while he was taking food and in that regard a telegram was given to S.S.P. Aligarh and that at the time the incident had taken place he and the accused appellant were in Delhi.

19. The testimony of this defence witness does not inspire confidence as no such statement was given by the accused appellant in his statement recorded under Section 313 Cr.P.C. Such type of defence had come at the later stage afterthought. The accused appellant in his statement under Section 313 Cr.P.C. had simply denied the prosecution version and had stated that he had come to his village along with his family members and that there was some quarrel between his uncle and complainant Satya Prakash and because of that he had also been implicated in this case. In this statement of the accused appellant nowhere is mentioned that he was in Delhi at the time of occurrence in question or he had come from Delhi or on what date he had come from Delhi and what was the dispute/quarrel between his uncle and the complainant Satya Prakash and moreover, his uncle has not been nominated in the FIR as an accused. So his statement that he has also been falsely implicated along with his uncle in this case is baseless and unbelievable. In this reference, it is also pertinent to mention that no documentary proof as regards the residence of the accused appellant in Delhi or as regards the fact of coming from Delhi has been produced by the defence in support of the defence witness. In these circumstances, it appears that the accused had taken false plea of defence which can be considered as an additional plea of conviction as held by Hon'ble Supreme Court in Shankar Lal vs. State of Maharashtra, AIR 1981 SC 765. Thus, the false plea of defence further gives assurance to the debility of the prosecution case as regards the commission of rape by the accused appellant upon the prosecutrix.

20. For the foregoing reasons and discussion, I am of the opinion that the prosecution case is fully proved and the trial Court has committed no error in convicting and sentencing the accused/appellant. I see no reason for interference with the order of the conviction and sentence passed against him. The appeal has no merit and is liable to be dismissed.

21. Consequently, the appeal is dismissed. The conviction and sentence recorded by the trial Court against the accused/appellant Kalu @ Om Veer are affirmed.

22. The accused appellant is in jail. He shall serve out the remainder of the sentence awarded to him by the trial court.

23. Office is directed to return the lower court record expeditiously along with a copy of this judgment for information and for intimation to the accused appellant through the Superintendent of Jail concerned.

Order Date :- 17.8.2015

SP