Rajesh vs State Of U.P.
2015 Latest Caselaw 2049 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED					         		 AFR
 
Court No. - 41							         
 
Case :- CRIMINAL APPEAL No. - 2269 of 2013
 
Appellant :- Rajesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- G.P. Dikshit,Indra Dev,P.Dixit
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Mohd. Tahir,J.

This criminal appeal has been filed against the judgment and order dated 14.5.2013 passed by Additional Sessions Judge (Ex Cadre) Court No.4, Chitrakoot in Sessions Trial No.46 of 2010, State vs. Rajesh, under Section 376 IPC P.S. Rajapur District Chitrakoot whereby the lower court had convicted the accused appellant of the charge under Section 376 IPC and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- and in default of payment of fine it was directed that the accused appellant shall further undergo rigorous imprisonment for one year. It was further directed that out of the amount of fine so received a sum of Rs.5,000/- shall be paid to the victim of this case as compensation.

2. The prosecution case as emerged from the First Information Report, in brief, is that on 19.11.2009 at about 4.00 p.m. when the daughter of the first informant (hereinafter referred to as the prosecutrix) aged about 22 years was cutting the fodder in the field of one Vishwanath Pandit, the accused Rajesh came there and asked the prosecutrix to have a talk with her in-laws by mobile phone. The prosecutrix refused to have any talk with her in-laws and said that she would not talk to anyone. On her refusal to have any talk on mobile phone to her in-laws the acccused Rajesh had forcibly planked her down in the field itself and attempted to commit rape on her whereupon the prosecutrix began to cry. On her cry the people had rushed to the spot from nearby fields. On seeing them the accused had run away from the spot leaving behid the prosecutrix. The prosecutrix had come to her house and narrated the whole incident to her father. Thereupon her father along with his daughter (prosecutrix) went to his elder brother Jagjivan Ram in village Karvi and narrated the whole incident to him and on the next day i.e. 20.11.2009 at 10.15 p.m. he lodged a written FIR (Ext.Ka.1) in regard to the above incident on the basis of which a case was registered under Section 376/511 IPC against the accused appellant at Case Crime No.1220/2009 in P.S. Rajapur District Chitrakoot. In that regard Chick FIR (Ext.Ka.9) was prepared by constable clerk Ram Gopal and an entry in that regard was also made by him in the General Diary the extract of which is Ext.Ka.10.

3. The investigation of this case was entrusted to S.I. Rajendra Prasad Dwivedi (PW-7). The prosecutrix was sent to P.H.C. Rajpur for medical examination along with lady Home Guard Mayadevi on 20.11.2009. On that day at 10.50 p.m. PW-5 Dr. Ram Pratap, PHC, Rajapur had conducted the medico legal examination of the prosecutrix and found the following injuries upon her person:

(I)      Contusion 3 cm x 2.5 cm on left side back scapular   upper border due to any blunt object.
 
(II)Body pain due to fisting and legging.
 
(III)Chest pain due to fisting.
 
	 
 
	In the opinion of the doctor, injury nos. 1, 2 and 3 were simple in nature and injury no.1 was caused due to any blunt object. Other injuries were caused due to fisting and legging. 
 

 

4. The prosecutrix was referred to Gynecologist District Hospital Chitrakoot for rape opinion. Dr. Manju Singh (PW-4) conducted the medico-legal examination of the prosecutrix on 21.11.2009 at 4.20 p.m. She found no external or internal injury on her person and also found that two fingers could easily enter into the vagina of the prosecutrix. She prepared two slides of the vaginal smear and sent them to Pathologist to ascertain the presence of the spermatozoa. The medico-legal examination report is Ext.Ka.4.

After obtaining the Pathologist report, Dr. Manju Singh (PW-4) prepared the supplementary medical report (Ext.Ka.5). According to this report, no spermatozoa was found in the vaginal smear and no definite opinion of rape could be given by the doctor.

5. The Investigating Officer (PW-7) inspected the spot and prepared the site plan (Ext.Ka.7). He took the broken bangles of the prosecutrix from the spot and in that regard seizure memo was prepared which is Ext.Ka.3. He also seized the bloodstained petticot of the prosecutrix and prepared memo (Ext.Ka.2) in that regard. On the basis of the statement of the prosecutrix and other witnesses the Investigating Officer converted the case under Section 376 IPC by deleting Section 511 IPC. Thereafter the investigation was handed over to S.O. Mahesh Singh (PW-6) who after completing the investigation submitted charge sheet (Ext.Ka.6) under Section 376 IPC against accused Rajesh in the court of CJM Chitrakoot who committed the case to the court of Sessions where from this case was transferred to the lower court for disposal.

6. The trial court framed charge under Section 376 IPC against the accused appellant. The accused appellant pleaded not guilty and claimed trial.

7. The prosecution in order to prove its case examined seven witnesses in all in the lower court to bring home the guilt of the accused. Out of these witnesses PW-1 is the prosecutrix. PW-2 Chhavi Lal is the scribe of the FIR. PW-3 Bachcha is the first informant and the father of the prosecutrix. PW-4 is Dr. Manju Singh who medico-legally examined the prosecutrix and proved the medical examination report (Ext.Ka.4) and supplementary medical report (Ext.Ka.5). PW-5 is Dr. Ram Pratap Bhartiya who examined the injuries of the prosecutrix. He proved the injury report of the prosecutrix. PW-6 is S.I. Mahesh Singh who concluded the investigation and filed the charge sheet (Ext.Ka.6). PW-7 is S.I. Rajendra Prasad Dwivedi who is the first Investigating Officer. He proved the investigation conducted by him and the seizure memo of the blood stained petticot of the prosecutrix (Ext.Ka.2). He also proved the site plan (Ext.Ka.7) and the G.D. Entry no.30 regarding the conversion of the case under Section 376 IPC which is Ext.Ka.8. He further proved the Chick FIR and the extract of the G.D. regarding registration of the case (Ext.Ka.10) to be in the handwriting of constable clerk Ram Gopal.

8. The prosecutrix (PW-1) has mainly stated in her examination-in-chief that she is an illiterate lady. So she cannot tell the year and date. The incident took place one and an half years before her statement in court. She was married in village Rajapur. She has one son whose age is 5 years. Before the incident in question she had been living with her parents for the last about one year because some dispute took place with her mother-in-law and her husband. Her husband had not come to take her with him. So she was living in her parental house. She has further stated that the incident took place in the month of Aghan. On the day of the occurrence she had gone to cut the fodder in the field of one Vishwanath. When she was cutting the fodder at about 4.15 p.m. accused Rajesh came there and he forcibly having planked her down on the earth committed rape upon her. She was crying at that time. She understands the meaning of Balatkar very well. The accused inserted his male organ into her private part. His pani (semen) emitted and the same fell on her petticot. On her cry, two boys namely Viran and Angad had come on the spot and they both caught hold of the accused and she herself also gave two blows of danda to the accused and thereafter she weepingly went to her house and narrated the entire incident to her mother who consequently told the same to her father. The Hansia (sickle) which she had in her hand was snatched by the accused and was thrown away by him. She went to village Karvi along with her father to meet her Baba and from there her father and Baba took her to P.S. Rajapur where her father tried to lodge the FIR but due to influence of the accused the report could not be lodged on that day. The same was lodged on the next day at 10.15 in the night. She had undergone medical examination in Karvi Government Hospital and she was interrogated by the Daroga Ji (I.O.).

9. PW-3 Baccha is the first informant. He in his examination-in-chief had reiterated the same version as has been narrated by PW-1. In addition to that, he proved the FIR (Ext.Ka.1).

10. The other witnesses are formal witnesses. So their examination-in-chief need not be repeated. The relevant portion of the statement of all the witnesses which they had given in cross-examination shall be referred to hereinafter while appreciating the evidence.

11. The accused appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution version and further stated that a false case has been instituted against him due to enmity and he is quite innocent. As per the suggestion given by the defence counsel to the prosecutrix (PW-1) in cross-examination, the defence case is this that the prosecutrix had stolen the mobile phone of the accused appellant from his shop and when the accused appellant saw his mobile in the hands of the prosecutrix, he snatched it from the prosecutrix. So he has been falsely implicated in this case. Further suggestion of the defence counsel to the prosecutrix to this witness is this that her husband is the relative of the accused appellant and he used to come to the house of the accused appellant and because of this enmity she had falsely implicated the accused appellant in this case.

12. In defence the accused appellant has produced two witnesses as DW-1 and DW-2 Mata Badal and Chhedi Lal respectively.

13. DW-1 Mata Badal has mainly stated in his statement that on 19.11.2000 he saw the prosecutrix quarreling with the accused appellant Rajesh and they were grappling with each other and were hurling abuses to each other. He and his companion Chhedi Lal intervened and pacified the matter. This altercation between them had taken place on account of stealing the mobile phone of the accused appellant by the prosecutrix and that the accused appellant had seen the prosecutrix talking by that mobile phone. So he snatched that phone from the prosecutrix. He has further stated that he came to know on the next day that the prosecutrix and her father got the case of rape registered in P.S. Rajapur against the accused appellant. The accused appellant also went to P.S. Rajapur to get the case registered in regard to theft of his mobile phone but his FIR was not registered by the police and the police had falsely implicated the accused appellant at the behest of the prosecutrix and her father and that the character of the prosecutrix is not up to the mark in the village and she is living separate from her husband in village Gosaipur for the last about 7-8 years.

14. DW-2 Chhedi Lal had also given out almost the similar statement as that of the defence witness Mata Badal (DW-1). So it is not necessary to repeat his statement.

15. The trial court after hearing the counsel for both the sides and perusing the evidence available on record, convicted and sentenced the accused appellant as hereinbefore mentioned in the beginning of the judgment.

16. Aggrieved by the judgment and order of the trial court accused appellant Rajesh has filed this criminal appeal.

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

18. Learned counsel for the accused appellant has assailed the testimony of the prosecutrix on this ground that in the FIR there is no allegation of commission of rape upon her but in her statement in the court she had improved the version of the prosecution by saying that rape was committed upon her by the accused appellant and that her statement in the court as regards the commission of rape upon her does not also find support from the Pathologist report, according to which no spermatozoa was found in her vaginal smear. So this witness has a tendency to exaggerate the matter, hence she should not be relied upon.

19. I do not agree with this contention because in her cross-examination she has fairly conceded that she on account of shyness and to avoid the social stigma remained silent before her father on the day of lodging the FIR and she did not disclose the fact of commission of rape upon her in police station before lodging the FIR. So the fact of commission of rape upon her by the accused appellant could not be mentioned in the FIR. Hence the explanation given by the prosecutrix as regards the omission of commission of rape in the FIR is satisfactory and acceptable. So far as Pathologist report as regards the non-finding of spermatozoa in the vaginal smear of the prosecutrix is concerned, in this regard it is pertinent to mention that there is nothing on record to show that the semen of the accused appellant was emitted inside the vagina of the prosecutrix. The prosecutrix had clearly stated in her cross-examination that her petticot was stained with pani (semen) of the accused appellant. This occurrence had taken place in quick succession because as per the statement of the prosecutrix when she was caught hold by the accused appellant, she cried and on her cry two boys namely Viran and Angad had come on the spot and that they had beaten the accused appellant while he was committing rape upon her. Under these circumstances, non-finding of spermatozoa in the vaginal smear of the prosecutrix does not adversely affect the veracity of the testimony of the prosecutrix. In this regard, the Hon'ble Supreme Court in the case of Narayanamma Vs. State of Karnataka,(1994) 5 SCC 728 has held that mere absence of the spermatozoa in the vaginal smear of the prosecutrix does not falsify the testimony of the prosecutrix.

20. Learned counsel for the accused appellant has challenged the testimony of the prosecutrix on this ground also that the prosecutrix was admittedly a married lady. So there was no occasion or reason of staining the petticot with blood and the presence of semen on her petticot also does not also connect the accused appellant with the crime in question because in her statement it has come that her husband used to come to her village.

21. I find no substance in this contention also because she in her cross-examination had specifically stated that her husband used to meet her in the presence of her parents and he never met her alone in lonely place. In support of the statement of the prosecutrix, her father (PW-3) Bachcha had also stated that his son-in-law Gaya Prasad after dispute with his daughter used to come to the house of the accused appellant and when he used to come to his (PW-3) house, then he did not talk with her daughter. So there was no chance of any sexual contact of her husband with the prosecutrix. It is also notable that the prosecutrix in her cross -examination had clearly stated that her M.C. (Monthly Course) was going on on the day of occurrence. So the blood which was found on the petticot of the prosecutrix was not the blood of any injury of the prosecutrix but the same was the blood of her M.C. It is also pertinent to mention in this reference that the petticot of the prosecutrix was seized and sealed by the Investigating Officer on the very next day of lodging of the FIR. So there was no occasion for any manipulation in that regard. According to the report of Forensic Science Laboratory the semen and the blood were found on the petticot of the prosecutrix which supports the testimony of the prosecutrix and ensures the credibility of the prosecution version. The testimony of the prosecutrix further finds support from the injury report (Ext.Ka.4) also because according to the injury report she sustained a contusion on her left side back in the spacular region and she had complaint of pain in her body. Her testimony is also corroborated by the G.D. (Ext.Ka.10) regarding the registration of the case, according to which injury was found in her left scapular region and she complained of pain in her body to the scribe of the G.D. So the prosecutrix is a reliable witness and her testimony inspires confidence.

22. Learned counsel for the accused appellant has challenged the veracity of the prosecution case on this ground that as per the statement of the prosecutrix two boys namely Viran and Angad who were said to have arrived on the spot at the time of occurrence in question have not been produced by the prosecution as witnesses and that the ladies who were said to have been present in the nearby field have also not been produced by the prosecution as witnesses. So non-production of these witnesses in the court creates doubt in the veracity of the prosecution case.

23. I find no force in this contention also because according to Section 134 of Indian Evidence Act no particular number of witnesses is required for the proof of any fact. It is the quality of the testimony of the witness and not the quantity of the testimony which is required to prove the case. In the present case, the testimony of the prosecutrix is reliable and the same finds support from the medical evidence as well as from the Forensic Science Laboratory report as also the G.D. (Ext.Ka.10). So non-production of the aforesaid witnesses does not weigh against the prosecutrix and the same does not in any way affect the veracity of the prosecution case.

24. Learned counsel for the accused appellant has challenged the testimony of the prosecutrix on this ground also that she in her statement recorded under Section 161 Cr.P.C. as well as in the court had stated that the occurrence in question took place on 11.9.2009 but according to the FIR the occurrence in question is said to have taken place on 19.11.2009. So there is serious contradiction as regards the happening of the said incident which goes to the root of the matter and makes the testimony of the prosecturix unreliable.

25. I find no substance in this contention also because in the opening sentence of the statement of the prosecutrix (PW-1) she has stated that she is an illiterate lady, so she cannot tell the year and date. She has further stated that the occurrence in question took place before one and an half years of her statement in the court. Her statement was recorded in the court on 11.5.2011 which relates to the date 19.11.2009 which is mentioned in the FIR (Ext.Ka.1). Furthermore the Investigating Officer (PW-7) has also clarified this discrepancy by saying that he inadvertently had written 11.9.2009 in the statement of the prosecutrix under Section 161 Cr.P.C. and that the actual date is 19.11.2009. So this very discrepancy is of no help to the defence and the same in no way affects the veracity of the testimony of the prosecutrix.

26. Learned counsel for the accused appellant has further contended that the incident did not occur on the place as alleged by the prosecution. In support of his contention, learned counsel for the accused appellant has pointed out that according to the statement of the prosecutrix (PW-1), the accused appellant had come on the spot from the western side while in the site plan he appears to have come on the spot from the southern side, that she does not know as to whose field is there in the north of the field in which she was cutting the fodder and that she also does not know the name of the owner of the field lying in the south of the spot.

27. This contention is also bereft of any merit because the prosecutrix in her statement has stated that she was cutting the fodder in the bowing down position and that the crop of the field was of the height up to the stomach and that the accused had suddenly caught hold of her from behind without saying anything. So in these circumstances this discrepancy about coming the accused on the spot is of minor nature. She has specifically stated in her statement that she was cutting the fodder in the middle of the field of Arhar and that there was a crop of wheat in the field lying in the east of the field of the spot. This statement is fully in accordance with the site plan of the spot which is Ext.Ka.7. It is also pertinent to mention in this reference that as per the inspection note of the Investigating Officer made in the case diary, the crop of Arhar was found scrapped and trampled on the spot and that the broken bangles were also found on the spot which were identified by the prosecutrix to be her own bangles. In regard to the seizure of those bangles from the spot a seizure memo (Ext.Ka.2) was also prepared which has been duly proved by the Investigating Officer (PW-7). So from the position of the spot as well as from the statement of the prosecutrix, it is clearly established that the occurrence in question had happened on the place as alleged by the prosecution.

28. I have also considered the defence version of the accused appellant. According to the defence version the accused appellant has been falsely implicated in this case due to his dispute with the prosecutrix in regard to the theft of his mobile phone by the prosecutrix. This version in itself appears to have no water in itself because no father or any woman would falsely implicate any person in such a case in which his/her family reputation and the future of the woman is adversely affected and moreover the defence version is not supported by any FIR or any application to police authorities in regard to the alleged theft of the said mobile phone by the prosecutrix. That even no date of theft of the said mobile phone has also been disclosed by the accused side. The accused has not taken such defence even in his statement recorded under Section 313 Cr.P.C.

29. The testimony of the defence witnesses also does not inspire confidence because none of them has stated in their statement that at the time of occurrence in question the accused appellant was not on the spot or on that day he was along with them at some another place. They had only stated in their statement that on the day of occurrence at about 2 o'clock in the day they had seen the accused appellant quarreling with the prosecutrix in the way. So the testimony of the defence witnesses is not believable and the same is of no help to the accused appellant. On the other hand the testimony of the prosecutrix not only inspires confidence but is otherwise corroborated on all material particulars.

30. 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.

31. Consequently, the appeal is dismissed. The conviction and sentence recorded by the trial Court against the accused/appellant are affirmed.

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

33. 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 :- 1.9.2015

SP