Allahabad High Court
Virendra vs State Of U.P. on 22 August, 2016
Bench: Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 21.07.2016
Delivered on 22.08.2016
Case :- CRIMINAL APPEAL No. - 2555 of 2009
Appellant :- Virendra
Respondent :- State Of U.P.
Counsel for Appellant :- Qazi Vakil Ahmad
Counsel for Respondent :- Govt. Advocate
And
Case :- CRIMINAL APPEAL No. - 2797 of 2009
Appellant :- Mahesh
Respondent :- State Of U.P.
Counsel for Appellant :- R.P. Tiwari,P.K. Vishnoi
Counsel for Respondent :- Govt. Advocate
Hon'ble Pratyush Kumar,J.
The aforesaid appeals filed on behalf of the accused-appellants are directed against the judgment and orders dated 21st April, 2009 passed in Sessions Trial No.496 of 2007 (State vs. Mahesh & others) arising out of Case Crime No.411 of 2005, they have been heard together and decided by a common order.
In the aforesaid Criminal Appeal No.2555 of 2009, the appellant Virendra has been convicted and sentenced as under:-
u/s 376 I.P.C. : 10 years RI with fine of Rs.10,000/-
If the said fine was not deposited, the appellant Virendra would undergo six months further RI.
In Criminal Appeal No.2797 of 2009, the appellant Mahesh has been convicted and sentenced as under:-
u/s 363 I.P.C. : 5 years RI with fine of Rs.5,000/-.
u/s 366 I.P.C. : 10 years RI with fine of Rs.10,000/-.
U/s 376 I.P.C. : 10 yeas RI with fine of Rs.10,000/-
If the said fines were not deposited, the appellant Mahesh would further undergo three months rigorous imprisonment on first count and rigorous imprisonment of six months separately on both other counts.
Heard Sri Qazi Vakil Ahmad and Sri P.K.Vishnoi, learned counsel for the appellants and Sri Shailendra Singh Rathore, learned AGA for the State-respondent and perused the record.
That on 29th October, 2005 at 10.05 a.m. on the basis of written report dated 27th October, 2005 of Kaderam addressed to Senior Superintendent of Police, District Bareilly, check FIR was scribed, Case Crime No.411 of 2005 under sections 363, 366 IPC was registered and investigation was entrusted to S.I. Vinod Kumar. In his application Kaderam has stated that on 16th October, 2005, his wife fell ill. He brought her to Beg Hospital, Bareilly for treatment. He left his six children with his mother Ramdei at the house. His eldest daughter victim no.1 aged about 14 years and younger daughter victim no.2 aged about 12 years were taken by accused Mahesh on 18th October, 2005 on the pretext that they were called by their father at Bareilly. His mother telephonically informed him on that day at 5.00 p.m. that when she returned from the field after taking fodder for the goat, youngest daughter Parvati aged about eight years informed her about the incident. His mother searched for both the girls but neither Mahesh nor the girls could be traced by his mother. After search was over his mother came to know from Mohanlal that Mahesh was seen taking victim no.1 and victim no.2 at 10.00 a.m. on that day and when he enquired, Mahesh informed him that their father had called them to Bareilly. On 19th October, 2005, he informed the police of police station Sahi but they had not registered his report nor tried to arrest the accused. He apprehended that his daughters might be sold or murdered.
S.I. Vinod Kumar, started the investigation, examined the witnesses, recovered victim no.1 and victim no.2 in village Vikam. Girls were medically examined. During investigation section 376 I.P.C was added. Name of Virendra came into light from the statement of the girls. Thereafter investigation was transferred to S.I. Om Prakash, who submitted the chargesheet.
The appellants stood for trial before the Court of Session where they were charged under sections 363, 366, 376(2)(g) I.P.C. They denied the charges and claimed to be tried. They were tried, convicted and sentenced, as above.
Feeling aggrieved, these appeals have been separately filed by the accused appellants. On behalf of the appellants, the learned counsel have submitted that the learned trial Judge has not appreciated the evidence in proper perspective for the reasons indicated below:-
(a) Medical evidence does not support the commission of rape.
(b) There are contradictions in the statements of victims on material points.
(c) Recovery memo Exhibit Ka-14 and account of recovery given by Shakuntala and Premwati are at variance.
(e) Victims were major at the time of occurrence. They were consenting parties. They had not raised any alarm during journey up to Punjab and during their stay at Punjab.
On the strength of these facts, learned counsel for the appellants submit that prosecution could not prove charges against the present appellants beyond doubt and the learned trial judge has recorded erroneous findings of fact which are liable to be set aside.
On behalf of the State-respondents, these arguments have been repelled and it has been submitted that evidence has been properly appreciated. Findings recorded by the trial Judge are well substantiated from the record. Cogent reasons have been given in support thereof. The appeals have no substance, they deserve to be dismissed.
In reference to my obligation as an appellate court hearing appeal against conviction, I would like to refresh my mind by recalling the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:
"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."
In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
Before entering into the merits of the arguments, it would be gainful to place on record the evidence adduced during trial by the parties.
Kaderam, P.W.-1- He is the first informant and father of the victims. He has reiterated the facts mentioned in his written report Exhibit Ka-1 and proved it.
Mohan Lal, P.W.-2- He has stated that two years before at about 10-11 a.m., he had seen Mahesh taking two daughters of Kaderam, victim no.1 and victim no.2. When he had asked Mahesh about them, Mahesh replied that their mother was ill, he was taking them to the hospital. Two sisters of Mahesh have been married in his village.
Victim No.2, P.W.-3 has stated that two years before in the month of 'Quwar' she and her sister victim no.1 were in the house, her mother was ill and hospitalized at Bareilly. Her father was with her mother. Mahesh came to her house and told her and her sister that their father telephonically asked him to bring them to Bareilly. She and her sister left the house with him and reached Ghaneta Phatak where Mahesh had made them, eat chat, pakauri, thereafter she felt drowsiness and fell unconscious. When she regained consciousness, she was travelling in a train. On asking Mahesh told her that he was taking them to their mother. On that pretext, he took them to Punjab. In Punjab nephew of Mahesh Virendra used to sell chat. Mahesh kept them in the room of Virendra. Virendra had committed rape on her. When she protested, he used to threatened her by showing country made pistol. She has proved her statement recorded by the magistrate under section 164 Cr.P.C. Exhibit Ka-2.
Victim No.1, P.W.-4 has reiterated the facts stated by her younger sister. According to her, she was kept in the room of Virendra where by showing country made pistol, Mahesh committed rape on her for 15 days. She was kept in confinement and Mahesh committed rape on her repeatedly during that period.
Dr. Vinita Chaturvedi, P.W.-5 has stated that on 9th November, 2005 at 12.05 p.m, she medically examined victim no.2. According to her, neither any external mark of injury nor any injury on her private parts were found. Hymen was old torned. On the same day at 12.15 p.m. she medically examined victim No.1 with the same result. She has proved medical examination report Exhibit Ka-5, medical examination report of victim no.1, Exhibit Ka-5 pathology reports Exhibits Ka 6 and 7. Supplementary reports of victim No.2 Exhibit Ka-8 and of the victim no.1 Exhibit Ka-9.
In the supplementary report, the doctor has opined that no definite opinion about rape could be given and age of the victim no.2 would be about 16 ½ years. In reference to victim no.1, she has opined that no definite opinion about rape could be given. Age of the victim no.1 could be 18 years.
H.M.Madan Pal Singh, P.W.-6 is the scribe of check FIR. He has proved check FIR Exhibit Ka-10, copy of the report of general diary Exhibit Ka-11.
S.I.Vinod Kumar Anand, P.W.-7 is the investigating officer. He gave details of the steps taken in the course of investigation. He has proved site plans Exhibits Ka- 12 & Ka-13, recovery memo of the girls Exhibit Ka-14.
Dr.Arvind Gupta, P.W.-8 was the senior radiologist. X-ray examination of the victims were conducted in his supervision. He has identified x-ray plates material Exhibits 1 and 2. He has also proved x-ray reports Exhibits Ka-15 & Ka-16.
S.I. Om Prakash, P.W.-9 is the second investigating officer. He has proved chargesheets Exhibits Ka-17 & Ka-18.
The case of the defence before the trial court was of simple denial. According to appellants, victim had given false evidence on account of pressure of their parents.
Appellant Virendra in his statement recorded under section 313 Cr.P.C.n has denied the facts stated by the prosecution witnesses and claimed false implication due to his relationship with Mahesh. Appellant Mahesh also denied the correctness of the facts stated by the prosecution witnesses in his statement recorded under section 313 Cr.P.C. and reiterated the defence version. In the defence, no evidence was given.
The trial Judge has found the statements of the victims worthy of reliance. He has concluded that in the present case, delay in FIR has been satisfactorily explained by the prosecution. On the basis of observation of the Hon'ble Apex Court laid in the case of State of Punjab Vs. Gurmit Singh; AIR (1996), SC 1399, he has rejected the argument that not raising of alarm by the victim was evidence of their consent. He found both the victims minor and recorded findings of guilt against the present appellants.
Appreciation of evidence by the trial court has been criticized on behalf of the appellants. Since appellant Mahesh has been convicted under section 363 IPC, I am required to re-examine and re-assess the prosecution evidence in reference to age of the victims. In the medical evidence, both have been found to be above 16 years of age. However, their parent Kaderam, P.W.-1 has deposed victim no.1 to be aged about 14 years and victim no.2 to be aged about 12 years. In the x-ray reports, Dr. Arvind Kumar, P.W.-8 has recorded the following findings:-
Victim No.1-
(a) Right elbow all four epiphysis were fused.
(b) Right knee epiphysis are partly fused, partly not fused.
(c) Right wrist ulna end of radius (sic) not fused vide Exhibit Ka- 16.
Victim No.2-
(a) Right elbow all four epiphysis were fused.
(b) Right knee epiphysis are not fused.
(c) Right wrist ulna end of radius (sic) not fused vide Exhibit Ka- 15.
Count of teeth
Victim No.1- 14/14
Victim No.2- 14/14
According to Dr. Modi, eruption of second molars takes place between 12 to 14 years. Though on average, such eruption has been noticed from the age of 11.79 years on average. Eruption of third molars begins from 17th years. Thus, count of teeth indicates both the victims to be below 17 years of age. Dr. Modi has also given in a tabular form indication of age on the basis of fusion of some epiphysis. Though from the opinions of different authorities, evidence obtained by ossification tests also depend on geographical situation, eating habits and status of family. The victims belong to Bareilly district. They are residents of village. They belong to poor family but all the authorities appeared to be unanimous that all the joints are fused up to the age of 18 in any case. When we take the radiological findings into consideration alongwith the background of the victims, it would become clear none of the victims could be held to be 18 years of age. Considering their family background, poverty, their ages have been over estimated by the doctor.
This is a grey area and I would not like to base my finding on such criteria. In the present case, on the point of age, statement of father of the victim Kaderam, P.W.-1 during cross examination, remained intact. In absence of any evidence envisaged in Rule-12 of the Juvenile Justice Rules, 2007, I feel statement of the father of the victim on the point of age of the victim commands respect and it can be safely relied on. Thus, on the basis of statement of Khaderam, P.W.-1, I hold victim No.1 to be aged about 14 years and victim No.2 aged about 12 years at the relevant time. Arguments contrary to this, are rejected.
As soon as it is established that victims were minor at the relevant time, not raising alarm by them looses its importance. With these observations, arguments advanced on behalf of the appellants in this regard is, rejected.
At this juncture, I would like to re-examine and re-assess the evidence of victim nos. 1 and 2 in the light of the contradictions pointed out on behalf of the appellants. Victim no.1, P.W.-4 has not made any contradictory statement on the point of her kidnapping, on the point of her confinement, about the place of confinement, in the manner she was subjected to rape. She withstood the test of cross examination successfully.
Same is the case with the statement of victim no.2.
Before I proceed further, I would like to take counsel on the point; how the evidence of the victim should be evaluated in case of rape. Hon'ble Apex Court in the case of State of Punjab vs. Gurmit Singh (supra) has made the following observations:-
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.....The testimony of the victim in such cases is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. ....The evidence of a victim of sexual assault stands almost on par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding."
Thereafter, I would like to refer some cases wherein the Hon'ble Apex Court has laid down guidelines on various points raised before me in reference to appreciation of evidence of the victim.
(1) In the State of H.P. vs. Mango Ram ; (2000) 7 SCC, 224, in this case, the Hon'ble Apex Court has observed that submission of body in fear or terror does not amount to consent.
(2) In Narayanamma vs. State of Karnataka ; (1994) 5 SCC, 728, the Hon'ble Apex Court has held that non-finding of spermatozoa in the vaginal smear would not falsify the version of the prosecutrix.
(3) Shri Narain Saha vs. State of Tripura; (2004) SCC 775- in this case, Hon'ble the Apex Court has held that if the testimony of the prosecutrix is reliable, conviction on the basis thereof is permissible.
In this case, Hon'ble Apex Court has also observed that minor discrepancies in evidence were of no consequence.
In the light of the legal position, as gathered from the above mentioned cases, arguments advanced by the learned counsel for the appellants, the victims were consenting parties, contradictions in their statements and variance between their statements and recovery memo about their recovery have no substance, hence, they are rejected. Statements of the victims also receives corroboration from the statement of Khaderam, P.W.-1 and statement of Mohanlal, P.W.-2.
Thus, no argument against the correctness of the conviction of the appellants survive. On behalf of the appellants, it has been submitted that lenient view may be taken on the point of sentence. Considering the seriousness of the offence, I do not think any ground is made out to reduce the sentences to which the appellants have been punished with.
Therefore, appeals have no substance, consequently they are dismissed. Appellant Virendra is in jail. He shall serve out his remaining sentence. Appellant Mahesh is on bail. He is directed to surrender before the trial court within 30 days failing which the presiding Judge of the trial court is directed to take appropriate steps to procure his presence and send him to jail to serve out his sentences.
Office is directed to communicate this order to the court concerned and to send back the record to the court below.
(PRATYUSH KUMAR,J.)
Order Date :- August 22 , 2016
SKD
