Raj Kumar vs State Of U.P.
2016 Latest Caselaw 1145 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Criminal Appeal No.3030 of 2005
 
Raj Kumar.............................................................Appellant.
 
Versus
 
State of U.P. ...................................................Opposite Party.
 

 
Hon'ble Arvind Kumar Tripathi, J.

Hon'ble Arvind Kumar Mishra-I, J.

(Delivered by Hon'ble Arvind Kumar Mishra-I J.)

The instant Criminal Appeal has been preferred against the judgment and order of conviction dated 06.06.2005 passed by the Additional Sessions Judge, Court No.3, Bulandshahr, in Session Trial No.302 of 2005 (State of U.P. Vs. Raj Kumar), arising out of Case Crime No.332 of 2004, under Section 376 I.P.C. whereby the appellant Raj Kumar has been convicted under Section 376(2)(f) IPC and sentenced to imprisonment for life with a fine of Rs.10,000/-, in case of default in payment of fine, the appellant will have to suffer additional simple imprisonment for two years.

Briefly stated factual matrix of this case, as discernible from the record appears to be that the complainant Smt. Meena wife of Naresh Singh, resident of village-Garhara lodged a written report at police station Kotwali Anoopshahr on 30.11.2004 at 2.00 a.m. whereby it was alleged that in her village Garhara, 'Rasleela' (stage show on Lord Rama and Krishna) was about to commence. On 29.11.2004, the appellant Raj Kumar, a friend of her husband, came to his house around 8.30 p.m. and took away her daughter Aarti aged about 7 years with him for watching 'Rasleela'. The complainant sent her daughter with the appellant Raj Kumar, who took the victim behind the 'Madai' (hut) of Yogendra Singh in the village and committed rape upon her forcibly. During course of commission of offence, the victim screamed, whereupon the two persons Harkesh son of Krishna Pal and Satpal son of Pahalvan Singh, who were going to see 'Rasleela', were attracted to the spot from where shrieks was raised. As soon as they arrived at the spot, they saw the appellant Raj Kumar forcibly committing rape upon the victim. They caught the appellant Raj Kumar on the spot and also rescued the victim, who was seeped in blood. They came back to village along with victim and the appellant where the villagers after coming to know about the crime gave severe beating to appellant Raj Kumar, thereafter report was written and lodged at the concerned police station and the appellant was also taken to the police station along with the victim. It was requested that report be lodged and proper action be taken.

This written report is Exhibit Ka-3 on record. Entry whereof was made in the relevant Chik FIR registered at Case Crime No.332 of 2004, under Section 376 on 30.11.2004 at 2.00 a.m. The Chik FIR is Exhibit Ka-4. Thereafter relevant entries were made in the concerned GD and the case was registered and the investigation was carried out.

The Investigating Officer took the clothes of the appellant particularly paint, shirt, vest etc. and prepared memo of the same on 30.11.2004, which is Exhibit Ka-7 on record. The Investigating Officer also took into possession the cloths, which were allegedly worn by the victim at the time of the incident from her house and prepared a memo of the same, which is Exhibit Ka-8 on record.

The victim was medically examined by Dr. Meenakshi Viz, Medical Officer at K.M.C. Hospital, Bulandshahr on 30.11.2004 at 1 p.m.

General Examination- she is fully conscious at the time of examination. No mark of injury over her body. Pubic and axillary hair absent. Breast not developed. Height 110 cm, Weight 15kg and Teeth 12/12.

Internal Examination- Two perineal tear present, Ist on right side at 7 O' clock position 1.5 cm long, muscle deep. Bleeds on touch. 2nd on left side at 4 O clock position. 1 cm long, muscle deep. Bleeds on touch.

Hymen torn, bleeds on touch. Parauethral area is congested. Vagina admits tip of a finger. Two slids of vaginal smear were prepared, sealed and sent to Pathologist, B.B.D. Hospital, Bulandshahr for histopathological examination. She was sent to Radiologist B.B.D. Hospital Bulandshahr for plain x-ray of wrist, joint specially for carpal bones, elbow and knee joint, for age determination.

The Medical Examination Report is Exhibit Ka-1 on record.

During course of investigation, the Investigating Officer also got recorded statement of the victim under Section 164 Cr.P.C. on 8.12.2004. Supplementary medical report was also prepared and her age was assessed to be about five years. This supplementary report is Exhibit Ka-2 on record. Vaginal smear report is Exhibit Ka-12 on record. Appellant-accused Raj Kumar was also medically examined on 30.11.2004 at 3.50 a.m. by Medical Officer, Primary Health Centre Anoopshahr, wherein the following injuries were found on his person:-

1- Complained of pain on right side chest but no visible injury seen.

2- Contusion 5 cm x 5 cm on left arm 10 cm above left elbow joint.

3- Complaint of pain on left side back but no visible injury seen.

4- Abrasion 8 cm x 8 cm on right knee joint.

5- Abrasion 5 cm x 4 cm on right lower limb. 9 cm above right ankle joint.

6- Contusion 4 cm x 3 cm on left lower limb. 20 cm above left knee joint.

7-Complaint of pain of left thigh but no visible injury seen.

The clothes of victim and the appellant, which were taken into possession by the Investigating Officer were sent to the Forensic Science Labrotary, Agra for chemical examination and from where report was obtained, which report is dated 29.1.2005 and the same is marked as Exhibit Ka-10 on record. The Investigating Officer also took various steps and recorded the statement of the witnesses and also prepared the site plan of the occurrence, which is Exhibit Ka-6 on record and after completing the investigation, he submitted the charge-sheet in the matter, which charge-sheet is Exhibit Ka-9 on record.

Thereafter the case was committed to the court of Sessions from where it was made over for trial to the concerned trial court where the accused was heard on the point of charge and prima facie ground was existing for framing charge under Section 376(2)(f) IPC. The charge was read over and explained to the accused in Hindi, who denied the charge and opted for trial.

The prosecution was asked to adduce its testimony in order to prove charge, whereupon the prosecution got examined as many as six witnesses, reference of the same is as here under:

P.W.1 is Dr. Minakshi Viz, who medically examined the victim on 30.11.2004 at 1 p.m. She has proved the medical report as Exhibit Ka-1 and Exhibit Ka-2 and she has assessed the age of the victim to be 5 years. P.W.2 is Meena, who is the complainant and mother of the victim. She has proved the written report Exhibit Ka-3. P.W.3 is Satpal Singh, eye-witness of the incident and he has narrated the incident. P.W.4 is victim herself. The trial court before examining the victim as witness tested her competency and after scrutiny found that she is competent to depose before the trial court. She has narrated the incident. P.W.5 is Constable Ram Prakash. He has proved Chik FIR as Exhibit Ka-4 and carbon copy of G.D. No.5 dated 30.11.2004 as Exhibit Ka-5. P.W.6 is S.I. Veer Sain. He has proved the various steps taken in completing the investigation and also proved the site plan Exhibit Ka-6 and the charge-sheet Exhibit Ka-9 submitted by him against the appellant.

Thereafter the evidence for the prosecution was closed and statement of appellant was recorded under Section 313 Cr.P.C., wherein he has stated that he has been falsely implicated in this case on the basis of the fabricated and concocted story as narrated in the first information report, due to personal grudge and vengeance. The complainant's husband had taken Rs.45,000/- one and half year ago and also purchased cloths worth Rs.7000/- on credit when demand for payment was made, the appellant was beaten up and has falsely been implicated in the case. It has further been stated that the appellant was performing Pooja at Panch Peepal temple in the village. He was beaten up and was compelled to leave the village but later on, he started performing pooja in the temple due to which the villagers and the complainant became inimical to him.

The trial court after hearing both the sides on merits passed aforesaid judgment and order dated 06.06.2005 in Sessions Trial No.302 of 2005 (State of U.P. Vs. Raj Kumar), under Sections 376(2)(f) I.P.C. convicting and sentencing him to imprisonment for life with a fine of Rs.10,000/- in case of default he will have to suffer additional simple imprisonment for two years.

Consequently, this appeal.

Heard Sri Raj Kumar Pandey and Sri V.K. Sharma, learned counsel for the appellant and Sri M.S. Yadav and Sri A.N. Mulla, learned AGA for the State and perused the records.

Learned counsel for the appellant has vehemently contended that it is a case of personal vengeance and because of personal grudge and enmity, the complainant in order to overhaul the situation manipulated the things in collusion with the police. The offence in question was never committed by the appellant. He in fact had no occasion to commit rape upon a child like the present one. The Investigating Officer wrongly prepared memo of clothes. The villagers after beating the appellant caused injuries due to which blood oozed out from his body and this blood was wrongly taken by the Investigating Officer. The so called witness of fact are the partisan and interested witnesses and they are on inimical terms with the appellant. The prosecution has not been able to prove its charge beyond reasonable doubt and the same is not supported by the circumstances of the case.

Sri A.N. Mulla, learned AGA vehemently opposed the submissions so made and submitted that scrutiny of evidence on record cumulatively reveals that the offence was committed by the appellant taking advantage of his intimacy with the father of the victim and the victim herself has narrated about the incident in innocuous terms. The appellant was caught by the villagers and was given beating by the villagers for committing such ghastly crime against minor girl at the tender age of five years.

Learned AGA has further submitted that the Forensic Science Labrotary, Agra has also proved presence of human sperm and blood on the clothes of victim as well as of appellant. There was no need of such false implication because the blood was coming out on touch from private part of the victim. Moreso, it is admitted that the victim was of very tender age less than 7 years. She has deposed as P.W.4 in this case and has identified the appellant in Court. The testimony of eye-witness P.W.3 Satpal Singh sufficiently proved the case of the prosecution. The appellant was caught on the spot, therefore, his presence cannot be doubted. Testimony of P.W.3, eye-witness, reflects that the incident is stated to have taken place on 29.11.2004, around 9 p.m. This witness along with Harkesh was going to watch 'Rasleela', on way when they arrived near field of Suresh then they heard about some scream of the girl, who was voicing behind 'Madai' (hut) of Yogendra Singh. They were attracted towards the spot, whereupon they saw Raj Kumar committing rape upon the victim. Harkesh caught Raj Kumar and also saved the victim. The private part of the victim was bleeding. The accused and the victim were taken to house of Naresh Singh. Few persons arrived at the spot after coming to know about the incident. Report was got written and lodged at the police station. The victim and Raj Kumar were medically examined at the Hospital. The clothes of victim and the appellant were taken and memos whereof were prepared, which are Exhibit ka-7 and Ka-8 on record, respectively.

Even medical examination of victim shows hymen torn and bleeds on touch. Two slides of vaginal smear prepared and this medical was conducted on 30.11.2004 at 1 p.m. Thereafter supplementary report was prepared and age of the victim was assessed to be five years.

Injuries have also been caused to the appellant Raj Kumar and he was also examined on 30.11.2004 at 3.50 a.m., therefore, all these circumstances vis-a-vis the testimony on record reasonably prove the case of prosecution beyond reasonable doubt and consequently the charge against accused appellant under Section 376 (2)f IPC. Therefore, in so far as conviction part of the judgment passed by the learned trial court is concerned the same does not suffer from any error latent or patent, which may warrant any interference at this stage.

However, arguments have been raised that in case the conviction is found to be sustainable then the quantum of punishment may be sympathetically considered looking to the aggravating and mitigating circumstances of the case and the same may be reduced to the period already undergone till date and it has been claimed that the appellant is in jail since 30.11.2004 and he has already spent more than 11 years in jail.

At this stage, learned AGA submitted that in such a ghastly crime committed against the girl who is of tender age, which is not less barbaric and adversely giving wrong message in the society, therefore, sentence should be extended to the maximum limit as prescribed for offence of rape. The appellant has not only committed the barbaric and gruesome crime against a female child but also put to shame even intimate relationship, which he had with the father of the victim and such things should not be viewed with leniency but should be viewed sternly by the Courts. Need of the society is that interest of at least female child and females should be protected from dangerous sexual assault. Therefore, the sentence imposed in this case is reasonably justified.

In support of his claim, learned counsel has cited case of Guru Basavaraj @ Bennesettapa Vs. State of Karnaaka 2012 (8) SCC 734. In this case, the Hon'ble Apex Court elaborated the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

Considered above submissions on point of quantum of sentence. Now in this case it is obvious that crime of rape was committed on a helpless and innocent female child of tender age -say- about five years and she was brutally raped at a lonely place after the sun set in the night of 29.11.2004. If the witness had not intervened at the relevant point of time, the situation could have worsened. There is no reason of false implication. Apart from mother P.W.2 and independent witness Sat Pal P.W.3, the victim after five years have also supported the FIR version to the effect that rape was committed upon her. The medical report and the report of the Forensic Science Labroratory, Agra  have also corroborated the prosecution case. Human blood, sperm and semen were found on clothes of the victim and accused appellant. In view of the evidence the prosecution has proved the case beyond reasonable doubt because accept minor and natural discrepancies in cross-examination of victim there are no material discrepancies and contradictions.

In the case of Gopal Singh Vs. State of Uttarkhanad 2013(7) SC 4, it has been observed by the Hon'ble Apex Court "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.

In the case of Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat (2009) 7 SCC 254, it was held by the Supreme Court "The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."

In the case of Jameel Vs. State of U.P. 2010 (12) SCC 532, the Hon'ble Apex Court held that "punishment must be appropriate and proportional to the gravity of the offence committed.

Considering the above guidelines of the Hon'ble Supreme Court and on careful perusal of the entire material and circumstances of the case, we come to conclusion that in this case the maximum sentence provided for the offence in question is appropriate and not disproportionate to offence and any lesser punishment would adversely effect not only the individual concerned but also the society as a whole.

Even in the case of Sevaka Perumal, etc. vs. State of Tamil Nadu (1991) 3 SCC 471, the Hon'ble Supreme Court held that " Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offene and the manner in which it was executed or committed etc."

While we glance over the entire facts and circumstances of the case and the sentence awarded by the trial court which is life imprisonment with a fine of Rs.10,000/-, we uphold that the punishment imposed by the trial court is not disproportionate to the offence proved, which cannot be categorized and confined to less than the maximum sentence prescribed for the offence in question. Moral depravity of a kind like the present one if perpetrated on innocent child of about five years and she is brutally raped then certainly the conscious of the entire society will be shaken and crisis of faith will arise. Any leniency will have serious repercussion on the well being of the society itself. Societal interest demand that appropriate stern sentence should be imposed in cases involving brutality and moral depravity.

In our considered opinion, the maximized sentence of life imprisonment is proportionately justified looking to the manner and nature of the offence committed in this case and while imposing fine of Rs.10,000/- already lenient view was taken by the trial court, therefore, prayer for reducing the sentence prescribed from the maximized to the period already undergone in jail is refused. The judgment and order of conviction dated 06.06.2005 passed by the Additional Sessions Judge, Court No.3, Bulandshahr, in Session Trial No.302 of 2005 (State of U.P. Vs. Raj Kumar), under Sections 376 (2) (f) IPC, Police Station Anoopshahar, arising out of Case No.332 of 2004, District Bulandshahr is upheld. Accordingly, the appeal being devoid of merits is hereby dismissed.

Appellant is in jail. He will serve out remaining part of the sentence.

Let this order be certified to the court concerned to ensure the compliance of the order and information.

Dt. 01.04 2016

RK