Rajesh Jatav vs State Of U.P.
2015 Latest Caselaw 1987 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                                                            Reserved
 
Court No. - 41
 

 
Case :- JAIL APPEAL No. - 4238 of 2013
 

 
Appellant :- Rajesh Jatav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,R.K.Gupta
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Mohd. Tahir,J.

This criminal appeal has been preferred against the judgment and order dated 01.08.2013 passed by Additional Sessions Judge, Court No. 5 Agra in S.T. No. 599 of 2011 State vs. Rajesh Jatav under Section 376 I.P.C. whereby the accused/appellant has been convicted under Section 376 I.P.C. and sentenced to undergo RI for 10 years and to pay a fine of Rs. 25,000/- with default clause.

2. The prosecution case, in brief, is that on 04.04.2011 at 12 o'clock in the day a girl aged about 9-10 years (hereinafter referred to as 'the prosecutrix') was playing in Abdul Hamid Park in Mohalla Islam Nagar, Tedi Bagiya in Agra. The accused/appellant Rajesh Jatav who was living in a room of public toilet built in that park called the prosecutrix on the pretext of fetching whey (Mattha) and took her in his room and forcibly began to commit rape upon her. On hearing screams of the prosecutrix, the first informant(father of the prosecutrix) and the other witnesses Samshuddin, Rothi and Riyasuddin who were resident of that Mohalla (colony) rushed to the spot. On seeing them the accused/appellant had tried to flee away but he was caught hold by the public in the park itself and thereafter he was brought to the police station Etmaudaulla, Agra.

3. The father of the prosecutrix, namely, Ashok son of Babu Khan had lodged a written First Information Report (Ext. Ka-1) in police station Etmaudaulla, Agra on the same day at 1:00 pm in regard to the above incident. The constable clerk Ram Sanehi (PW-5) prepared the chick F.I.R. (Ext. Ka-8) on the basis of the F.I.R. (Ext. Ka-1); registered a case under Section 376 I.P.C. at case crime No. 224 of 2011 against the accused-appellant and also made an entry in the general diary in that regard, the extract of which is Ext. Ka-9.

4. The investigation of this case was entrusted to S.I. Santosh Kumar (PW-6) who proceeded to the spot and prepared the site plan of the spot which is Ext. Ka-10. The Investigating Officer took the Salwar and Kurti of the prosecutrix into his possession and prepared a memo thereof which is Ext.-Ka-2. He sealed the Chaddhi (underwear) of the accused/appellant also and prepared a memo in that regard, which is Ext. Ka-3.

5. The prosecutrix was sent to Lady Loyal Hosptial Agra on the same day i.e. 4.4.2011 for medico-legal examination through lady constable Shakiya Praveen and constable Arvind Kumar. She was medico-legally examined by Dr. Aalokita Sharma. On external examination of the prosecutrix Dr. Aalokita Sharma found no axillary hair present and found the breast of the prosecutrix in developing stage. She found no mark of injury on her body.

6. On internal examination of the presecutrix, the Doctor found no injury on perineum; she found no pubic hair present on the private party of the prosecutrix; she found vaginal bleeding present and the hymen was found fresh torn and on touching bleeding was found. Vagina admitted a tip of finger with difficulty. For examination of spermatozoa vaginal smear was taken by the Doctor and was sent to pathologist for evidence of spermatozoa and for determination of age the prosecutrix was referred to CMO Agra. The medico legal examination report is Ext. Ka-5.

7. As per supplementary medical report head of spermatozoa was seen in the vaginal smear and the age of the prosecutrix was found about 11 years. In the opinion of the Doctor pathology report suggested physical contact. No definite opinion about rape could be given by the Doctor. Supplementary medical report is Ext.Ka-6, which was prepared on the basis of the pathology report and the report of the CMO Agra (Ext. Ka-7).

8. As per Forensic Science Laboratory report (Ext. Ka-12), the Salwar and Kurti were found blood stained. No blood stain was found on the underwear of the accused/appellant. No spermatozoa was also found on the Salwar and Kurti of the prosecutrix and the underwear of the accused/appellant.

9. The Investigating Officer after completing the investigation submitted charge-sheet under Section 376 I.P.C. against the accused/appellant in the court of Additional Chief Judicial Magistrate, Court No. 12 Agra who after taking cognizance of the case committed the same to the court of Sessions where from this case was transferred to the trial court for disposal. The trial court framed the charge under Section 376 IPC against the accused/appellant. The accused/appellant denied the charge and claimed to be tried.

10. The prosecution in order to prove its case had examined six witnesses in all in the trial court. Out of them PW-1 Ashok Kumar is the first informant of this case. He is the father of the prosecutrix and he proved the First Information Report(Ext. Ka-1). PW-2 is the prosecutrix. PW-3 is Dr. Aalokita Sharma who conducted the medico legal examination of the prosecutrix and she proved the medico legal examination report (Ext. Ka-5) and the supplementary medical report (Ext. Ka-6). PW-4 is Dr. Yaspal Singh who was CMO Agra. He proved the report (Ext. Ka-7) which is related to the age of the prosecutrix. PW-5 is constable clerk Ram Sanehi who proved the chick F.I.R. (Ext. Ka-8) and the extract of the G.D. (Ext. Ka-9). PW-6 is S.I. Santosh Kumar is the I.O. of this case. He proved the investigation conducted by himself and further proved the seizure memo of Salwar and Kurti (Ext. Ka-2), the seizure memo of Chaddhi (underwear) of the accused/appellant (Ext. Ka-3) and the memo(Ext. Ka-4) relating to the arrest of the accused/appellant. He also proved the site plan (Ext Ka-10) and the charge-sheet (Ext Ka-11).

11. The accused/appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and further submitted that he was kept at public toilet on salary of Rs. 300/- per month by Nishar Ali and Idrish. The people of that Mohalla(colony) used to come there to ease themselves. He used to restrain them due to which some hot talks took place between him and the people of that colony Islam Nagar which is totally Muslim populated colony and the people of that colony had falsely implicated him in this case. They had taken away his belongings and his wife and children. He is confident that Nishar Ali and Idarish had taken away his wife and children after falsely implicating him in this case.

12. The trial court after hearing the amicus curiae for the accused/appellant and the State Counsel and perusing the evidence on record, convicted the accused/appellant under Section 376 I.P.C. and sentenced him to undergo R.I. For 10 years and to pay a fine of Rs. 25,000/-. The trial court further directed that in case of default payment of fine the accused/appellant would have to undergo further simple imprisonment for one year and it was also directed that out of the fine so received an amount of Rs. 20,000/- shall be paid to the family members of the prosecutrix.

13. Aggrieved by the said judgment and order of the trial court the accused/appellant had preferred this criminal appeal from jail thought Jail Superintendent of District Jail Agra.

14. Heard Sri R.K. Gupta, learned amicus curiae for the appellant, learned Additional Government Counsel (AGA) for the State and perused the evidence available on record.

15. On behalf of the the accused/appellant it has been contended that the prosecution has not produced any independent witness in support of its case and only the first informant who is the father of the said prosecutrix and the prosecutrix herself were examined by the prosecution. So without corroboration from the testimony of any other independent witness the testimony of the prosecution witnesses ought not to have been relied upon by the lower court. So the trial court had committed an error in placing reliance upon the testimony of the witnesses produced by the prosecution and thus the impugned judgment and order is not sustainable in law.

On the other hand, learned AGA has supported the impugned judgment and order and has further submitted that the first informant PW-1 is the resident of the same locality in which the incident in question took place. So he is a natural witness and he went to the spot on hearing the screams of his daughter and caught hold the accused/appellant on the spot with the help of the residents of that locality. PW-2 is the prosecutrix herself who sustained injuries in her private part. So both are reliable witnesses.

16. I find force in the contention of learned AGA. In cross-examination of First Informant (PW-1), it has come that the house of the first informant was 100-200 yards from the said park where the incident took place and the first informant had categorically stated that he went to the park for calling his daughter (prosecutrix) then he heard the screams of his daughter. On seeing them the accused/appellant had run from the spot towards Nala (sewerage) and he was caught hold by him and other persons of the locality. It is pertinent to mention that the F.I.R. of this case was lodged after one our only, which shows that this witness had reached the spot at once on hearing the screams of his daughter. He denied the suggestion of the defence that the accused/appellant has been falsely implicated in this case because of being Hindu. He himself had also stated that the public toilet was lying closed there and he had denied the suggestion that the accused/appellant used to restrain the people of that locality on account of non-giving any money for the use of the public toilet. He further denied the suggestion of the defence that the private part of the prosecutrix was injured by inserting finger therein. Thus this witness is a natural witness and he has reiterated the version as contained in the F.I.R. He was subjected to lengthy cross-examination by the defence but nothing favourable to the accused/appellant had come in his cross-examination. So there is no reason to disbelieve the testimony of this witness.

17. PW-2 is the prosecutrix and she is the victim of the crime in question. As per F.I.R., she was 9-10 years of age and as per medical report, she was about 11 years of age at the time of the occurrence in question. As per medical evidence her private part was bleeding and her hymen was found fresh torn and on touching it was bleeding. As per pathologist report head of spermatozoa was found in her vaginal smear. All these facts and circumstances of this case clearly prove that the prosecutrix was subjected to forcible sexual intercourse. She in her statement categorically stated that it was the accused/appellant who on the day and time of the occurrence in question when she was playing with children of her sister in the park, asked her to bring whey (Mattha) of Rs. 5/-. As soon as she forwarded her hand for money the accused had caught hold her hand and dragged her into his room. The accused/appellant took off her Salwar and Kurti. Thereafter he thrusted  his male organ into her private part whereupon she cried. On hearing her voice/screams, her father and her Jija(Rothi) came there and they rescued her from the grip of the accused/appellant. But when he was trying to escape from there, he was caught hold by the public on the spot. Thereafter she along with her father and other persons went to the police station and thereafter she was medico legally examined. Her testimony is fully corroborated by the medical evidence. So she is a reliable witness.

18.Learned defence counsel (Amicus Curiae) has challenged the testimony of the prosecutrix on the ground that according to her statement the accused/appellant was caught hold by the father and the other persons of the locality on the spot itself while according to the statement of PW-1, her father, the accused/appellant was arrested on Nala(sewerage) and moreover the spot of his arrest has not been shown in the site plan.

19.This discrepancy, in my opinion, is of minor nature and it does not go to the root of the matter because the room in which the rape was committed and the Nala(sewerage) where the accused appellant was arrested were situated in the same short area. PW-1 Ashok Kumar in his cross-examination had stated that the Nala(sewerage) was behind the public toilet and it was but natural that the accused/appellant would have tried to avoid the arrest and secondly there is nothing on record to show that the prosecutrix had also caught hold the accused/appellant. So it was not possible for her to tell as to where the accused/appellant was exactly arrested by the public outside the room and that no suggestion whatsoever has been given to either of the witnesses by the defence counsel that the accused/appellant was not arrested on the spot but was arrested at somewhere by the public or by the police. So far as the non-showing of the spot or arrest of the accused in site plan, is concerned, it is the mistake of the Investigating Officer which does not adversely affect the prosecution case.

20. Learned counsel for the defence has assailed the testimony of the prosecutrix on this ground also that this witness has stated in his cross-examination that the accused had committed rape upon her for a period of half to ¾ hours but no blood was found on the Chadar (sheet) on which the rape is said to have been committed and that no blood was also found on the spot. If the rape would have been committed for such a long period, in that case the said Chadar(sheet) would have been soaked with blood and the blood would have been found on the spot also but the Investigating Officer had stated in his cross-examination that no blood stain on Chadar(sheet) was found nor any blood was found on the spot. So the testimony of the prosecutrix is not reliable.

21. In my opinion, this discrepancy is also of no help to the defence because the prosecutrix was about 11 years of age and she is an illiterate girl and she might have told the period of commission of rape by being misled in her cross-examination. Sometimes a witness ventures to answer those questions also which are not necessarily true or relevant for the fear that his/her evidence may not be discarded in respect of main part of the incident. Even a truthful witness is overawed by the court atmosphere and the piercing cross-examination made by the defence counsel. Sometimes he/she adds embroidery to prosecution story, perhaps for the fear of being disbelieved but that cannot be a ground to disbelieve his/her testimony, if there is a ring of truth in the main. So the exaggeration that has been made by the prosecutrix about the period of commission of rape cannot be a ground to disbelieve her testimony. It is also pertinent to mention here in this reference that as per the broad spectrum of the matter the incident in question took place in quick succession, so there might be an oozing of blood in a very small quantity which might not be dropped down on the Chadar (sheet) or on the spot. According to the Forensic Science Laboratory report, blood was found on the Salwar and Kurti of the prosecutrix which clearly indicates that there was penetration in the private part of the prosecutrix and as per the statement of the witnesses, father of the prosecutrix and other persons of locality had rushed to the spot just after hearing the screams of the prosecutrix, so the incident took place in a very short span of time. Under these circumstances, non-finding of any blood on the Chadar(sheet) or on the spot does not suggest that no such incident had taken place or the testimony of the prosecutrix is unreliable. It is also pertinent to mention that the testimony of the victim of sexual offence is entitled to have a great weight because in Indian society no girl or women of self-respect would level a false charge of rape against anyone because her own honour and future remains at stake. In the present case the testimony of the prosecutrix is cogent and clear and and the same is fully corroborated by the medical evidence. She has successfully stood the test of cross-examination and her testimony is fully in consonance with the facts and circumstances of the case. Hence I find no infirmity or impropriety in her testimony. In my considered opinion, she is a truthful witness and her testimony is fully reliable.

22.The F.I.R. of this case was lodged just after one hour of the occurrence in question and in the F.I.R. it is clearly mentioned that it is the accused/appellant who had committed rape upon the prosecutrix and that he was arrested on the spot and was brought to the police station by the public. So the F.I.R. in this case has its own corroborative value and the same fully corroborates the prosecution case and further the prosecution case is fully corroborated by the medical evidence as well as by Forensic Science Laboratory report (Ext. Ka-12)).

23.The defence version that the accused/appellant has been falsely implicated in this case by the father of the prosecutrix due to the hot talk on non-payment of money for the use of public toilet has no substance. No father would fabricate a false case of rape upon her minor unmarried daughter because the future of his daughter may become dark and his family honour is adversely affected by such case.

24.  For the foregoing reasons and discussion, I come to this conclusion that the prosecution case is fully proved and the trial court has committed no error in convicting and sentencing the accused/appellant. The appeal has no merit and the same is liable to be dismissed.

25. In the result, the appeal is dismissed. The conviction and sentence recorded by the trial court against the accused/appellant Rajesh Jatav are affirmed.

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

27. 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 Superintendent of jail concerned.

28. Amicus curiae Sri. R.K. Gupta advocate shall be entitled to receive Rs.7000/- (rupees seven thousand only) in lump sum as fee from the State.

Order Date :- 26.8.2015

Praveen.