Shushil vs The State Of U.P.
2016 Latest Caselaw 2536 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 

 
Reserved
 

 
Court No. - 25
 

 
Case :- CRIMINAL APPEAL No. - 422 of 1994
 

 
Appellant :- Shushil
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- B.D.Misra,Archana Misra,Suresh Kumar Srivastava
 
Counsel for Respondent :- Government Advocate
 

 

 
AND
 

 
Case :- CRIMINAL APPEAL No. - 425 of 1994
 

 
Appellant :- Ram Prakash @ Raja
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- B.R.Verma,Akhilesh Kumar Srivastava,Girish Kumar Pande, Pankaj Verma
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Aditya Nath Mittal,J.

1. Both these appeals arise out from the same judgement and order dated 19.08.1994 and they are being taken up together.

2. Both these appeals have been filed challenging the judgement and order dated 19.08.1994 passed by the 5th Additional Sessions Judge, Gonda in Sessions Trial No.255 of 1987 (State vs. Sushil and others) whereby the appellant Sushil has been convicted for the offence punishable under section 366 IPC and 376 IPC for rigorous imprisonment of five years along with fine of Rs.1000/- while the appellant Ram Prakash @ Raja has been convicted for the offence punishable under sections 376/368 IPC to undergo five years imprisonment along with fine of Rs.1000/-.

3. The prosecution case, in brief, is that the complainant - Sirtaji lodged a first information report alleging that on 19.11.1985, at about 4.00PM, when she was cutting grass along-with her daughter, the son of complainant came and called her to come in the house, upon which she left her daughter in the field. When her daughter did not return home, she went to the place where she was cutting grass but she was not there. She was aged about 15-16 years. The complainant searched her daughter and the witnesses told that she was seen with Sushil. When she was not traced out, a first information report was lodged on 21.11.1985, which was registered as Case Crime No.725 of 1985 under sections 363, 366 IPC. The matter was investigated and during the investigation, the victim was recovered on 04.12.1985 from the place where Ram Prakash @ Raja was staying. After investigation, the charge-sheet was filed and the appellants were charged for the said offences. The appellants denied the charges and claimed trial.

4. The prosecution has examined the complainant Sirtaji as PW-1 who has supported the first information report version and the report as Ext. Ka.-1.

5. PW-2 is the victim of offence, who has stated that when she was cutting grass in the field, accused Sushil finding all alone had committed rape with him and showing the knife, she was told that he will take away to Ludhiana and will keep him with him. When she resisted, she was threatened by putting the knife on her neck. She has further stated that he took away him towards the railway station Gonda and handed over to Gurgur @ Kishan Lal by saying that he will come back after arranging some money. Gurgur @ Kishan Lal also shown the knife to her and committed rape with her. On 9th day, she was handed over to Ram Prakash @ Raja who brought her to the house of his sister at Bhatpurwa and he had also committed rape against her will. After 9th day of incident, she was recovered by the police from the place where Ram Prakash @ Raja has kept her. She was brought to the hospital where she was subjected to medical examination and she also gave her statement in the Court.

6. Dr. Smt. Ranjana Singh has been examined as PW-3, who has proved the medical examination of the victim and has stated that she was aged about 17 years at the time of examination.

7. Sri P. C. Shukla has been examined as PW-4 who has proved the x-ray examination and x-ray plates.

8. Head Constable Devi Bux Singh has been examined as PW-5 who has proved the chik FIR and the copy of GD. He has also proved the formal papers of the investigation and has stated that the investigation was done by Sri Ram Krishna Yadav. It is to be mentioned here that by application Kha-72, the prosecution has submitted the application that investigating officer Sri Ram Krishna Yadav had died on 09.12.1993, therefore, it is not possible to examine him.

9. Gafur has been examined as PW-6, who is the witness of recovery but he has not supported the prosecution version.

10. Dr. O.P. Srivastava has been examined as PW-7, who has proved the smear test of the victim and the report as Ext. Ka-11.

11. After recording the evidence of the prosecution, the appellants were examined under section 313 Cr.P.C. in which they had denied the evidence. Sushil Kumar- appellant has stated that Ujagir and others had taken forcible possession of his field and there was a dispute, therefore, he has been falsely implicated.

Ram Prakash @ Raja another appellant has stated that he has been falsely implicated due to enmity. No evidence in defence has been adduced by any of the appellants.

12. After appreciating the evidence on record, learned trial court has held guilty Sushil for the offence punishable under section 366 and 376 IPC but acquitted him for the offence punishable under section 363 IPC. Ram Prakash @ Raja another appellant has been convicted for the offence punishable under section 376 and 368 IPC. It is also relevant to mention here that accused Gurgur @ Kishan Lal was absconding therefore, the charge-sheet against him has been filed as absconder and he could not be tried.

13. Learned counsel for the appellants has submitted that the alleged recovery of the victim from the possession of Ram Prakash is not proved because Gafur (PW-6) is not the witness of recovery. It has also been submitted that the recovery memo has also not been proved and the appellant has been falsely implicated.

14. Learned counsel appearing for another appellant Sushil has submitted that in the evidence, it has been found that the victim was above 18 years, therefore, he has been acquitted for the offence punishable under section 363 IPC, therefore, he should also have been acquitted for the offence punishable under section 366 and 376 IPC.

15. Learned counsel for the appellants have also submitted that the victim was a consenting party and no injury has been found on the body of the victim. Therefore, it cannot be presumed that she was subjected to rape. It has also been submitted that the victim was a girl of easy virtue and the appellants have been falsely implicated.

16. On the other hand, learned AGA has defended the impugned judgement and has submitted that victim was subjected to rape by three persons and there is sufficient evidence on record to upheld the conviction of the appellants. It has also been submitted that the statement of the victim regarding recovery from the place of Ram Prakash is proved, therefore, there was no requirement to have examined other witnesses.

17. I have considered the rival submissions of the learned counsel for the appellants, learned AGA and perused the record.

18. From the judicial decisions rendered by the Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus:-

i. There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge.

ii. There may be circumstances in a given case which might make it safe to dispense with such a corroboration.

iii. On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated thus:

(a) circumstances showing on the part of prosecutrix an animus against the accused;

(b) where the question of want of consent is material, circumstances tending to show consent e.g. absence of material showing an attempt at resistance, absence of any marks of struggle;

(c) attempt at improvement or exaggeration in the version as attempted by the prosecutrix;

(d) conduct on the part of the prosecutrix inconsistency with the credibility of the version e.g. omission to make a disclosure at the earliest opportunity:

(e) element of artificiality or unnatural-ness in the story as attempted by the prosecutrix, and

(f) absence of signs of rape in the findings of the medical examination or on chemical analysis.

19. From the above principles as laid down by Hon'ble the Apex Court, it is settled law that conviction can be based on the sole testimony of the prosecutrix provided it inspires confidence.

20. As far as the submission of learned counsel for appellants that victim was a consenting party, an inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 I.P.C. refers to the expression "Consent" and describes what is not consent.

21. For the purpose of Section 375, voluntarily participation is required after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

22. In the case of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113 Hon'ble the Apex Court has interpreted the word "consent" as under:-

"'Consent' is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn if only based on evidence or probabilities of the case."

It has been further held that the consent is intended by Sections 375 and 376 IPC should not be under a misconception of fact.

23. In the case of Deelip Singh alias Dilip Kumar vs. State of Bihar reported in (2005) 1 SCC 88, Hon'ble the Apex Court has held that:-

"In the matter of consent, the court has to see whether the person giving the consent had gone it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. alleged offender is concious of the fact or should have reason but think that but for the fear or misconception, the consent would not have been given."

24. Learned counsel for the appellant has further submitted that in the medical examination report, no injuries were found on the body of the victim, therefore, the incident is doubtful.

In the case of Santosh Kumar vs. State of M.P. reported in (2006) 10 SCC 595, the Hon'ble Apex Court has held that mere fact that no injuries were found on her private parts, cannot be a ground to hold that no rape was committed upon her. Again in the case of State of Rajasthan vs. N.K. (accused) decided on 30.03.2000, the Hon'ble Apex Court has held that the absence of injuries and delay in the First Information Report cannot be a ground to disbelieve the prosecution story, if otherwise found reliable.

In the case of Ranjit Hazarika vs. State of Assam reported in (1998) 8 SCC 635, the Hon'ble Supreme Court has held as under:-

"The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, , nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on "no reasons".

25. In the present case, learned counsel appearing for the appellant Ram Prakash @ Raja has tried to assassinate the character of the victim in his argument that the victim was a girl of easy virtue, therefore, he has been falsely implicated.

26. From the perusal of the cross-examination conducted at the trial court, it appears that the learned counsel in the Trial Court also tried to assassinate the character of the complainant.

In the traditional non-permissive bounds of society of India, no girl or woman of self-respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle.

27. The victim in this case is a married lady. In my opinion, every woman has self respect and dignity and the argument of the appellants' counsel that the victim was a lady of bad character has no relevance because there is no evidence in this regard. The appellants were given the opportunity to adduce evidence in their defence but no such evidence has been adduced. It appears that the appellant Ram Prakash @ Raja do not have any regard to the dignity and self-respect of an women. I take worst case of a prostitute. Even if a prostitute lodges a report of rape and her evidence inspires confidence, there is no rule of law that the statement of the prostitute cannot be believed. Even a prostitute has the fundamental right as well as the moral and social rights and she is at her liberty to permit a person for sexual intercourse. Nobody can commit sexual intercourse even with prostitute under the threat or upon the gun point. It is highly painful that the dignity and self respect of victim has unnecessarily been tossed in the trial court as well as before this Court but I am of the opinion that howsoever a girl may be of easy virtue, even she may be a prostitute, no one has the right to commit intercourse with her or to outrage her modesty without her consent provided such consent is not obtained under the threat of weapon or misrepresentation and further provided that she is capable of making consent.

28. As far the argument of consent is concerned, when the consent s pleaded, it automatically admits the incident in question and the only fact of consent is required to be proved. In case of alleged consent the incident cannot be denied and the accused cannot blow hot and cold at the same time.

29. In this case, if the girl was of easy virtue, then why the appellants had chosen to put their pious mouth in the dirty drain. Learned counsel for the appellants could not answer the query of the Court that when the appellants were matured persons of 21 years, then why they selected to commit intercourse with such a girl.

30. As far as the offence of abduction is concerned, the complainant (PW-1) has specifically stated in her statement that she was cutting grass along with her daughter and she went to her house upon the call of her son and left her daughter alone in the field, the accused finding her daughter alone came near him and had shown the knife and has also stated that if she will raise alarm, he will kill him.

31. The victim (PW-2) in her statement has stated that she was terrorised and the appellant Sushil had committed rape with him. After committing the rape, Sushil offered her to go Ludhiana and when she resisted, she was again threatened by putting the knife on her neck. The appellant Sushil went to the railway station Gonda and handed over the victim to Gurgur @ Kishan Lal stating that he will come back after managing some money. The unfortunate part of the incident is that Gurgur @ Kishan Lal had also committed rape with him on the strength of knife and kept the victim with him for about eight days. The further unfortunate part of this incident is that on 9th day, Gurgur @ Kishan Lal handed over the victim to Ram Prakash @ Raja who kept the victim at the house of his sister and also committed rape with her. It appears that the appellants used the victim as playing toy and the possibility cannot be ruled out that Sushil and then Kishan Lal might have handed over the victim to Ram Prakash as an article of sale. In the statement of the victim, it has come that whenever she was transported from one place to another place, she was covered by bed-sheet. She has also stated that Ram Prakash @ Raja had committed rape alike Sushil upon the point of knife. She has further stated in her statement that due to fear, she could not make alarm. She has further stated that the police had reached the place of Ram Prakash @ Raja where the victim was kept and Ram Prakash was closing the door at that time. She was recovered by the police in presence of her brother and she was brought to the police station and then she was subjected to medical examination. The victim has been cross examined by the counsel for both the appellants at length. She has also stated that she had given her statement before the court (it might be the statement under section 164 Cr.P.C.).

32. The victim has been cross examined on the point of age as well as regarding the incident. In the cross examination, she has categorically stated that when Sushil started forcible act then she had not raised alarm because she was all alone and Sushil was having knife in his hand. She has further stated in the cross-examination that when she tried to raise alarm, then again Sushil threatened to kill him. In the cross-examination, she has further narrated the story of handing over to Gurmur @ Kishan Lal and regarding the appellant Ram Prakash @ Raja, she has stated in her cross-examination that she has raised alarm when Ram Prakash @ Raja was taking away her by Rickshaw, but no person has helped him. Upon the cross-examination by the learned counsel for the appellant Sushil, she has further reiterated that Sushil had committed rape with him after threatening him.

33. Rape is committed in a lonely place and it is not possible to procure the witness regarding the act of rape. The circumstances must prove that the rape was committed with her. In the present case, the occurrence took place on 19.11.1985 at about 4.00 pm and as per recovery memo, she has been recovered on 04.12.1985 from Bhatpurwa along with Ram Prakash. Ram Prakash has not given any explanation as to why he was keeping the victim at the place of his sister at Bhatpura. In the present case, there is absolutely no enmity either with Ram Prakash @ Raja or with Sushil so as to believe that they have been falsely implicated due to enmity.

34. I have carefully examined the cross-examination of the victim and I do not find any infirmity in her statement so as to make it unsafe or impossible to base the finding of guilt against the appellants. In the present case, I do not find that it was a case of consent because in the statement of the prosecutrix, it has come categorically that all the three accused persons including the present appellants had committed rape with her on the point of knife and she was helpless. It has also come in the evidence that she tried to resist the incident but because she was under fear, therefore, she could not get rid from the possession of the appellants. In the statements in chief as well as in cross examination, I do not find any improvement or exaggeration by the prosecutrix and I also do not find any element of artificiality or unnaturalness in the story as narrated by the prosecutrix. The prosecutrix was a married woman but her 'gauna' had not taken place. Therefore, she was residing with her mother. In the villages, it is common factor that the marriage is solemnized in the childhood, and the 'gauna' is done when the bride and bridegroom becomes mature. She has further specifically stated that she did not have any intercourse prior to the intercourse made by the appellant Sushil.

35. From the evidence on record, it is proved beyond reasonable doubt that the appellant Sushil abducted her with intention that she will be compelled for illicit course against her will. Both the appellants were matured persons aged about 21 years at the date of incident and they very well understood the consequences of such action. It is also proved from the evidence that the appellant Ram Prakash wrongfully kept in confinement the abducted victim and also committed rape with her. The offence of rape is proved against both the appellants beyond any reasonable doubt.

36. Learned trial court has also considered the evidence on record very carefully and has categorically appreciated each and every part of the evidence on record.

37. For the aforesaid reasons, I am also in agreement with the findings of the learned Court below. After appreciating the evidence on record, I am also of the view that the appellants Sushil is guilty for the offence punishable under section 366 and 376 IPC while the appellant Ram Prakash @ Raja is guilty for the offence punishable under section 368 and 376 IPC. The conviction of both the appellants is accordingly upheld.

38. As far as the quantum of punishment is concerned, learned court below has already taken a lenient view and has sentenced the appellants Sushil with an imprisonment of five years for the offence punishable under section 366 IPC along with fine of Rs.1000/- and he has further been sentenced to five years rigorous imprisonment along with fine of Rs.1000/- for the offence punishable under section 376 IPC; while the appellant Ram Prakash @ Raja has been convicted with an imprisonment of five years and fine of Rs.1000/- for the offence punishable under section 368 IPC and he has also been convicted for the offence punishable under section 376 IPC with the same sentence.

39. The circumstances in which the offence was committed and looking to the conduct of the appellants, the appellants do not require any leniency or sympathy. Thus, I do not find any sufficient ground to interfere with the sentence.

40. For the facts and circumstances mentioned above, the appeal is liable to be dismissed.

41. Both the appeals are dismissed. The conviction and sentence of both the appellants is upheld. The appellants are directed to surrender before the court below within fifteen days from today to serve out the sentence, failing which the trial court shall be at liberty to take coercive steps against them. The bail granted to the appellants stands cancelled.

Office is directed to send a certified copy of this judgement along-with the lower court record to the court concerned at an early date for its compliance and necessary action.

Let a copy of this judgement be kept on record of Criminal Appeal No.425 of 1994.

Order Date :- 13.05.2016

VNP/-