Guddu Urf Raghvendra vs State Of U.P.
2015 Latest Caselaw 1410 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									         A.F.R.
 
									  Reserved
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 5725 of 2010
 

 
Appellant :- Guddu @ Raghvendra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.M.A. Abdy,Mohd.Naushad Siddiqui,P.K.Singh,Santosh Kumar Nigam
 
Counsel for Respondent :- Govt. Advocate,Shyam Singh Yadav
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Raghvendra Kumar, J)

1. Heard learned counsel for the accused-appellant, learned AGA for the State of U.P. and perused the material available on record.

2. This appeal has been instituted on behalf of accused Guddu @ Raghvendra against judgement and order dated 10.8.2010 passed by Addl. Sessions Judge/ Fast Track Court No. 2, Kanpur Nagar (Ramabai Nagar) in Special Trial No. 123 of 2008, under Sections 376, 323, 504, 506 (2) IPC and 3 (2) (5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act in case crime no. 136 of 2008, P.S. Ghatampur, District- Kanpur Nagar whereby the accused- appellant has been convicted for the offence under Sections 376, 323, 504 506 (2) IPC and 3 (2) (5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act and was awarded sentence for 10 years' R.I. for offence under Section 376 IPC along with fine of Rs. 5000/- with default stipulation and for offence under Section 323 IPC sentenced to S.I for one year along with fine of Rs. 1000/- with default stipulation and for the offence under Section 504 IPC, sentenced to six month S.I. along with fine of Rs. 500/- with default stipulation and for offence under Section 506 (2) IPC, S.I. for two years along with fine of Rs. 1500/- with default stipulation and for offence 3 (2) (5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, imprisonment for life and fine of Rs. 5000/- along with default stipulation .

3. As per the prosecution version, the FIR of the case was registered on 31.3.2008 at 16:30 hours with respect to incident which took place on 31.3.2008 at 11 a.m.. The distance from the place of occurrence to the police station has been shown as 13 kms.

4. The perusal of the FIR reveals that the prosecutrix student of class- X was coming on 31.3.2008 at about 11 a.m. to her village after the examination of class X. As she entered in the village, one Guddu @ Raghvendra dragged her to his room after shutting her mouth and committed forcible rape against her. Thereafter at the point of illicit arm, he extended threat not to lodge the FIR otherwise your house would be set ablaze. After registration of the FIR, investigation proceeded in accordance with law. The prosecutrix was medically examined. The statement of witnesses were recorded by the I.O. The investigation culminated into filing of the charge-sheet by the I.O.

5. After complying with the procedure contemplated under law, the learned trial court framed charge against the accused for the offence under Sections 376, 323, 504, 506 (2) IPC read with Section 3 (2) (5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act.

6. To substantiate the charge against the accused, the prosecution has examined Alka Devi (P.W.-1). She has proved the execution of the tahreeri (written) report Ex. Ka-1. She is the star witness and the victim of crime. P.W.-2- Guddi Devi wife of Bhura Prasad is the mother of victim and she is also the witness of the fact. P.W.-3- Sant Ram is a witness of recovery memo and has proved the execution of Salwar- Ex.-1, Kurta- Ex-2, Dupatta- Ex. 3, Baniyan- Ex.4 and underwear Ex.-5 and the same was taken by the Sub-Inspector in the custody of the police and proved the execution of recovery memo Ex-ka-2. His testimony is confined to the execution of Ex-ka-2. Constable Ashok Kumar- P.W-4 has proved the execution of chik FIR - Ex.ka-3 and G.D. Entry Ex.ka-4. Dr. Jyotshana Kumari- P.W.-5 has medically examined the prosecutrix and has made following observation with respect to external examination of the prosecutrix. No visible mark of injury, breast developed, Auxiliary and pubic hairs present. No mark of injury found on the abdomen. On internal examination, the doctor has noted hymen was torn at 6' clock position, margins were red and congested. Slight bleeding was coming out from the torn portion. Vagina was admitting two fingers with pain. She has proved the medical examination Ex.ka-5, pathology report Ex.ka-6, absence of sperm report Ex.ka-7. X-ray report Ex.ka-8 and has also the proved the supplementary medical examination report- Ex.ka-9 and has further opined that the injury within vagina may be caused by penis. The injuries found in her private part was fresh. P.W.-6- Vijay Singh is the subsequent I.O. Who has proved execution of charge-sheet Ex.Ka-10. Neel Kamal- P.W.-7 has proved the execution of Ex.Ka-11 (recovery memo of underwear) which was taken into custody of the police. He is a formal witness and is not a witness of fact. P.W.-8 Lallan Rai is the investigation officer who conducted investigation and taken possession of the clothes of the victim, arrested the accused, visited the place of occurrence and prepared the site plan Ex-ka-12 and has proved the document of arrest of accused Ex.ka-13.

7. It has been submitted on behalf of the accused appellant that the appellant is innocent and has been falsely implicated in the case. The girl was a consenting party as is evident from the fact that she did not raise any alarm in spite of dragging her inside the house. No visible mark of injury have been noted by the doctor on the person of the prosecutrix. The accused did not try to abscond after the incident and accused was not medically examined. The accused was not in a fit medical condition. To substantiate his argument, he has placed reliance on D.W.-1 Mitthu Lal and D.W.-2 Tribhuwan Giri.

8. Learned AGA has submitted that it is the accused who has committed rape with the prosecutrix and by committing rape, he has humiliated the prosecutrix as being the member of scheduled caste community. The accused has not been falsely implicated. The medical evidence also supports the factum of rape. Mere absence of visible mark of injury on the external part of the body does not amount to denial of the prosecution story.

9. The FIR of the case was lodged with the police on 31.3.2008 at 16:30 hours with respect to an incident occuured on 11 a.m. on the same date. The FIR was delayed by more than five hours. The distance of the police station from the place of occurrence has been shown to be 13 kms.

10. The offences relating to the sexual assault are taken to be very heinous offence. These offences have a great impact on the social status, prestige of the family of the victim as well as it has impact on the dignity, reputation and prestige of the victim. The reputation, psychology image of the victim is always at jeopardy in the event of victimization of sexual assault in her known circle. After such incident normally a mature decision is taken by the family members about lodging of the FIR. Sometimes because of the social prestige and social constraint, such offence even go unreported to the police. The distance of the police station is 13 kms. Ex. Ka-1 the typed report was initially got typed and thereafter it was lodged with the police. All these factors must have consumed reasonable time. Reasonable time is also involved in travelling a distance of 13 kms as is mentioned in the FIR.

11. In view of the facts and circumstances of the case, we are of the considered opinion that the delay is not an inordinate delay and it will neither have adverse impact on the authenticity of the FIR nor would be fatal for prosecution.

12. Much emphasis has been led by the counsel for the accused-appellant that the girl was a consenting partner in the offence. The inference can be drawn only after appreciating circumstances and the evidence available on record. It has come in evidence that the prosecutrix was coming after examination as she entered in the village, she was dragged in the house by the accused and thereafter she was raped. The testimony of the prosecutrix is at par with the testimony of an injured witness. Without cogent reasons, there is no justification for discarding the evidence of the prosecutrix. Forcibly dragging the girl after shutting the mouth inside the house is having a terrifying effect and moreover this fact cannot be ignored that the girl belongs to a scheduled caste community. She might have not dared to raise alarm or this possibility cannot be ruled out that the girl desperately surrendered herself. In view of these circumstances it cannot be interfered that the victim was consenting party.

13. It has been submitted on behalf of the accused- appellant that the charge-sheet was submitted under Sections 376, 323, 504, 506 (2) IPC read with Section 3 (1) (12) Scheduled Caste and Schedule Tribe (Prevention of Atrocities), Act whereas the charge has been framed by the learned trial court for the offence under Section 3 (2) (5) SC/ST Act. It is settled proposition of law that the Court is competent and required to consider the material placed by the police along with the charge sheet before framing the charge. The Court is not bound to be guided by the sections which have been mentioned by the police in the charge-sheet. The Courts are expected to apply judicial mind and are expected to asses the material placed before it along with charge-sheet and to see what offences are made out and to frame the charge accordingly. Thus, if the charge has been framed by the learned court below with respect to Section 3 (2) (5) SC/ST Act, in the eyes of law the learned court below has not committed any error in framing the charge against the accused for the offence.

14. It has been submitted on behalf of the accused-appellant that there is no eye witness to the incident. Since the offence has been committed in a closed room, so the question of viewing of the incident by any one else does not appear to be probable.

15. P.W.-2- Guddi Devi is the mother of the prosecutrix. Her testimony has been assailed on the ground that she has not disclosed the name of the girl from whom she received the information about the location of the prosecutrix. P.W.-2 has categorically stated that she knocked the door of the house of the accused and as soon as the door was opened, she found her daughter naked. Thereafter, she dressed her. She has further deposed that the girl was terrified. The testimony of P.W.-2 is with respect to the recovery of the girl from the house of the accused where the accused was also present. It is a strong circumstance which goes against the accused. It is a settled proposition of law that with respect to the offences relating to sexual assault, the victim is supposed to be a star witness and is best witness of the fact. The testimony of the prosecutrix is always treated, under law, at par with the testimony of an injured and if the evidence is assessed to be credible and reliable, there is no legal impediment before the Court in placing the reliance upon the testimony of such witness and for drawing the inference accordingly. In light of above, now testimony of P.W.-1 is to be appreciated. P.W.-1 has been put to lengthy cross examination on different dates. She was firstly examined on 4.4.2009 and her cross examination was recorded after lapse of more than a month period i.e. 15.5.2009. The prosecutrix has given the detailed description of the offences in the FIR disclosing the time, date, place and manner of occurrence. She has fully corroborated the story as narrated in the FIR. She has supported the story of the FIR in her statement during trial. During the course of cross-examination, she has not made any admission which is incoherent with the case of the prosecution version or the statement recorded as examination in-chief. At the time of appreciation of the evidence, medical evidence is required to be appreciated simultaneously. As per the medical examination report, the age of the girl has been assessed above 16 years and below 18 years. Learned counsel for the accused- appellant has submitted that the doctor has not given any definite opinion about the rape.

16. P.W.-5- Dr. Jyotshana has proved the execution of the medical examination reports Ex.Ka-5, Ex. Ka-6, Ex. Ka-7, Ex. Ka-8 and Ex.Ka-9. It has been submitted on behalf of accused-appellant that no visible mark of injury has been noted by the doctor. In Ex.Ka-6 the presence of spermatozoa has also not been noticed during the pathological examination of the vaginal smear. Vagina admits two fingers. On the basis of medical examination report, the argument has been advanced on behalf of the accused-appellant that conclusively rape is not established against accused-appellant. The testimony of Dr. Jyotshana (P.W.-5) along with the documents the execution of which has been proved by her is to be considered and appreciated the observation of the doctor that hymen was torn at 6 O'clock position, margins red and congested as mentioned in Ex-Ka-5. The observation of the doctor on Ex.Ka-9 that possibility of rape cannot be ruled out. Moreso, slight bleeding was also noticed from the torn portion. Vagina admitted two fingers with pain as stated on oath and the observation of the doctor in the oral testimony that the rape with the girl cannot be denied. The injuries on internal part are of within 24 hours. The injuries of the internal part was found to be fresh. Further she has observed in her statement that the injuries are probable by hard blunt object. There is a complete consistency and coherence in the statement of the prosecutrix and is duly supported by the testimony of P.W.-5- Dr. Jyotshana. This goes to establish the factum of rape as alleged by the prosecution against the victim by the accused. There is nothing in the evidence of the prosecutrix to infer that she was a consenting party. She was made naked by the appellant under threat.

17. It has been submitted on behalf of the accused- appellant that the accused was not medically examined by the doctor otherwise a definite opinion would have come before the Court on the basis of smegma test. It is a settled proposition of law that the courts are expected to draw inference on the basis of totality of the circumstances and not on the basis of isolated omission. It is true that smegma test conducted well in time is also a reasonable evidence which can be considered and relied in appropriate situations.

18. On the basis of the material available on record, it can safely be inferred that the prosecutrix is minor even after ignoring her High School certificate. As per medical evidence, she is below 18 years.

19. It has been submitted on behalf of the accused-appellant that D.W.-1 and D.W.-2 have categorically stated about mental condition of the accused. The best evidence about the mental condition of the accused would have been the doctor under whose treatment he remained during the period of ailment, who has not been produced. So far as the mental health is concerned, the best evidence could have been the doctor who has not been produced it will have negative impact.

20. The accused after shutting the mouth of the prosecutrix dragged her inside the room and thereafter committed rape meaning thereby the accused was mentally concious that the loneliness in the house would be the appropriate circumstance for committing the offence, because when the girl was recovered from his house, there was none else present in the house. This circumstance also goes against him.

21. It has been submitted on behalf of the accused-appellant that accused did not try to abscond after commission of the offence. It has come in the evidence that after commission of the offence, the prosecutrix was threatened to face the dire consequences in case the FIR is lodged against him. This circumstance may indicate that the victim might have not lodged the FIR of the incident against him (accused) and there might have been other reasons which cannot be discussed in the absence of evidence lead on behalf of accused in this regard.

22. It has been submitted on behalf of the accused-appellant that the rape was not committed for the fact that the accused was the member of the scheduled caste or scheduled tribe. It is essential to appreciate the provision contained in Section 3 (2) (5) Schediled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989 which reads as under :-

"3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe-

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine"

23. For appreciation of the commission of the offence under Section 3 (2) (5) SC/ST Act, it would be appropriate to have a glance over the Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267. The observation of the Hon'ble Apex Court are reproduced here below :

"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), IPC does not per se become life sentence."

24. Hon'ble Supreme Court in Ramdas and Ors. v. State of Maharashtra, (2007) 2 SCC 170 has held as under:

"11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside." .

25. From the perusal of above proposition of law, it is clear that for appreciating Section 3 (2) (5) SC/St Act, it is essential that the offence should have committed because the victim belongs to a SC/ST community with the intention to denigrate her position as being the member of the SC/ST community. Nowhere the evidence to this effect has been led that the prosecutrix was victimized because she belonged to the SC/ST community. In absence of such evidence we are of the considered opinion that the offence under Section 3 (2) (5) SC/ST Act would not be made out.

26. Before parting with the judgment we think it necessary to observe that Section 3 (2) V of the SC-ST Act does not define any substantive offence but it only provide for enhanced punishment when an offence is committed under given circumstances stated therein. So the trial court ought not to have convicted the appellant under Section 3 (2) V SC-ST Act separately. But if any offence is made out which was committed under the specified conditions then accused can be convicted for that offence and read with section 3 (2) V SC-ST Act he shall be inflicted with enhanced punishment provided under this section.

27. Learned counsel for the defence has also submitted that for considering mental status of the accused, a lenient view may be taken so that his treatment may be conducted. We are of the considered opinion that even lesser quantum of punishment would meet the end of justice in the instant case.

28. We are of the considered opinion that the findings recorded by the learned court below against the accused Guddu @ Raghvendra regarding conviction for the offence under Section 376, 323, 504, 506 (2) IPC, does not require interference. The only quantum of sentence requires interference.

29. In view of the aforesaid discussions, the offence under Section 3 (2) (5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is not made out against the accused. The sentence awarded to accused Guddu @ Raghvendra for the offence under Section 3 (2) (5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act by the learned trial court, is hereby set aside. The appeal deserves to be partly allowed.

30. The criminal appeal is partly allowed. The conviction of accused Guddu @ Raghvendra for the offence punishable under Sections 376, 323, 504, 506 (2) IPC is maintained. Accused- Guddu @ Raghvendra is awarded R.I. for seven years for the offence under Section 376 IPC. Rest of the sentence and fine awarded against the accused for the remaining offence referred in the para is not interfered with. The accused is in jail. He shall be entitled to commutation of sentence as per provisions of Code of Criminal Procedure.

31. Let copy of the judgment and order along with lower court record be transmitted to learned Court below for compliance.

Dated:- 23rd July, 2015

KU/-

		       Raghvendra Kumar, J.	      S.V. S. Rathore, J.