Ravindra Kumar vs State Of U.P.
2016 Latest Caselaw 2719 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON 03.03.2016 
 
DELIVERED ON 18.05.2016
 
                                                                        (AFR)
 

 

 
Case :- CRIMINAL APPEAL No. - 1173 of 2014
 

 
Appellant :- Ravindra Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.P. Singh,A.M. Tripathi,S.K. Nigam
 
Counsel for Respondent :- Govt. Advocate,Ram Raj Pandey
 

 
Hon'ble Mrs. Ranjana Pandya,J.

Accused appellant has challenged the judgment and order dated 20.01.2014 passed by the learned Additional Sessions Judge, Court No. 2, Baghpat in ST No. 20 of 2011(State Vs. Ravindra) arising out of Crime No. 479 of 2010 under Section 376(2)(g) IPC, Police Station Doghat, District Baghpat whereby the accused appellant was found guilty and sentenced to 10 years' rigorous imprisonment and Rs.15,000/- fine under Section 376(2)(g) IPC with default stipulation.

2. Filtering out the unnecessary details, the case of prosecution is that the daughter of informant was a student of Janta Inter College, Palri. On 23.09.2010, she was not feeling well, hence she went to take medicine. As soon as she reached near the tube well of Rajendra at about 10:30 AM, Ankit and Ravindra were standing there. Ravindra caught the hand of victim and Ankit pushed her from behind. Ravindra took the girl towards the sugarcane filed and raped her. The victim raised hue and cry at which Mukesh and Mangey reached on the spot. They saw Ankit standing outside, while Ravindra was raping the victim. Seeing these witnesses both fled away from the spot. Mukesh informed about the occurrence to the informant telephonically. The girl was brought to the police station for lodging the first information report.

3. The prosecution examined four witnesses. PW-1 is Dharm Pal, who proved the written report as Ext. Ka-1. PW-2 is the victim. PW-3 is Doctor Neera Panwar. On that day, the victim was referred to the doctor for medical examination, but she was treated and examined in the private hospital. Hence, the family members of the victim were not willing to get the victim examined. She was referred to Higher Centre PL Sharma Hospital (Female). This witness proved the reference as Ext. Ka-2. PW-4 is SI Ramji Lal. He copied the written report in the case diary. Further, he recorded the statements of the Chik Writer, informant Dharam Pal, inspected the spot at the pointing out of the informant, which was proved by this witness as Ext. Ka-3. On 24.09.2010, the accused were arrested. Their statements were recorded. On 26.09.2010, the report of victim was received, which was copied in case diary. The clothes of victim were taken in custody. Statement of the victim was recorded in the case diary on 23.12.2010. The articles were sent for Forensic Lab Examination. Investigation ended into a charge sheet, which was proved by this witness as Ext. Ka-4. Chik was scribed by the Constable Dharam Veer Singh, which was proved by this witness as Ext. Ka-5 and copy of the GD was proved as Ext. Ka-6. PW-5 is doctor Amita Singh, who treated the victim just after the occurrence. She was brought by Home-Guard Kuldeep and Ram Naresh Tomar and Bhupendra Singh. This witness submitted the original papers regarding the treatment of the victim. This witness stated that the victim was not in a position to talk, her pulse was not traceable and her blood-pressure was not recordable. This witness found a perineal and vaginal tear, which was stitched. Further, this witness stated that there was excessive bleeding from the vagina of the victim. Hymen was torn, which was freshly torn at 6 o'clock position. In the inner side of vagina towards the post vaginal wall there was a big lacerated wound in the vagina, which was extending from mid-line to lateral vaginal wall on both sides. The bleeding was controlled and the wound was stitched. She was given necessary medical treatment. Her clothes and slides were handed over to the Constable. There were chances that the victim would have been forcibly raped. The victim was taken back by her attendants on the ground that she would be got treated at Baghpat. She was aged about 16 years. This witness proved the report as Ext. Ka-7.

4. After examining five witnesses, the prosecution closed its evidence. The statement of accused was recorded under Section 313 Cr.P.C., who denied the occurrence and stated that he had been falsely implicated. The accused did not adduce any evidence in defence.

5. I have heard, learned counsel for appellant, learned AGA for the State and perused the record of the case.

6. After hearing the counsel for the parties, the learned Trial Court proceeded to convict and sentence the accused appellant as narrated in para -1 of the judgment.

7. The learned counsel for the accused appellant contended that the impugned judgment and order passed by the learned Trial Court is based on conjecture and surmises and is liable to be quashed by this Court. On the contrary, learned AGA supported the judgment and order under appeal and submitted that there is no illegality, infirmity or impropriety in the impugned judgment and the appeal deserves to be dismissed.

8. Accused Ankit was declared a juvenile on the date of occurrence. Hence, his case was separated from that of the present accused appellant.

9. As far as the first information report is concerned, it is prompt and a prompt FIR leaves lesser chances of embellishment and exaggeration in the prosecution case.

10. The occurrence took place on 23.09.2010 at about 10:30 AM, whereas the report was lodged on the same day at 11:30 AM. The distance of police station from the place of occurrence is 12 kilometers. Hence, there is no delay in lodging the first information report.

11. A perusal of the copy of GD is also relevant because in the copy of the GD, which is marked as Ext. Ka-6, shows that the victim reached the police station along with her family members. Since she was bleeding profusely and her life had to be saved, hence she was sent to Baraut instantly for medical aid. Thus, it is evident that when the victim went to the police station, she was bleeding profusely. Thus, the first information report is prompt and there are remote chances of false implication and embellishment.

12. A lot of stress has been given about age of the victim to show that she was a major. The accused has not come up with the case that the victim was a consenting party. If it is proved that she was raped without her consent, the age will not come into picture, specifically if her consent is not proved. PW-1 is not an eye witness to the incident. But he has stated that Ravindra caught hands of his daughter. Ankit pushed her from behind. Ankit stood on guard where Ravindra raped his daughter. It is admitted that Ravindra is brother-in-law (Dewar) of the daughter of informant's brother. Hence, the parties were not unknown to each other. A lot of fishing cross-examination was done to try to indicate that the girl was not going to school and she willingly went away with the accused appellant. This did not find favour with the Court because even for the sake of argument it is presumed that she was not going to school even then if rape is proved, the other factors have no bearing on the case. The informant has stated that the victim was sick from 20-25 days. He has further stated that from the place of incident, they all went to the police station. He was accompanied by the victim and his wife. It has also come on record that co-accused Ankit is cousin of Ravindra. Even if it is the case of prosecution that the victim was going for taking medicine, if the victim had to make a false case, she could very easily have stated that she was going to school when she was raped.

13. The statement of victim is very important in a case of rape. If the statement of the victim is reliable and worthy of credence, conviction can be based on the sole testimony of the victim.

14. It is well settled law that the Courts must while evaluating the evidence remain alive to the fact that in a case of rape no self-respecting woman would come forward in Court just to make a humiliating statement against her honour such as is involved in the commission of her rape. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.

15. In (2010) 8 SCC 191, Vijay @ Chinee Vs. State of M.P. the Apex Court has observed thus:

"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

16. In the case of State of Punjab Vs. Ramdev Singh, AIR 2004 SC 1290 the Apex Court as observed as under:

"Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society."

17. I think that right to life includes right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings.

18. Rape is a very dehumanizing offence which not only shatters the victim physically but leaves scar in the memories of the victim which does not heal with time. The victim of such an offence suffers from "Rape Trauma Syndrome" which has been medically defined as follows:-

"No person exposed to severe trauma is immune to suffering and the signs of that suffering are referred to as symptoms. When these symptoms can be grouped as a pattern over time, they are referred to as a syndrome. Once the pattern becomes entrenched or unlikely to change, and affect a person's functioning in a permanent way it is referred to as a disorder and is regarded as a mental illness.

Rape Trauma Syndrome "RTS" is the medical term given to the response that survivors have to rape. It is very important to note that RTS is the natural response of a psychologically healthy person to the trauma of rape so these symptoms do not constitute a mental disorder or illness.

The most powerful factor in determining psychological suffering or damage is the character of the traumatic event itself. Individual personality characteristics count for little in the face of overwhelming events. Physical harm or injuries are also not as great a factor since individuals with little or no physical harm may yet be severely affected by their exposure to a traumatic situation. Before looking at the effects of rape it is therefore important to first examine the character of the trauma that is rape.

Not only is there the element of surprise, the threat of death and the threat of injury, there is also the violation of the person that is synonymous with rape. This violation is physical, emotional and moral and associated with the closest human intimacy of sexual contact. The intention of the rapist is to profane this most private aspect of the person and render his victim utterly helpless. The character of the event is thus connected to the perpetrator's apparent need to terrorise, dominate and humiliate the victim. The victim is therefore most likely to see his actions as motivated by deliberate malice, a malice impossible for her to understand. Rape by its very nature is intentionally designed to produce psychological trauma. It is form of organised social violence comparable only to the combat of war, being but the private expression of the same force. We get nowhere in our understanding of Rape Trauma Syndrome if we think of rape as simply being unwanted sex. Where combat veterans suffer Post Traumatic Stress Disorder, rape survivors experience similar symptoms on a physical, behavioural and psychological level. Some of the symptoms are present immediately after the rape while other only appear at a later stage."

19. But it needs no reiteration to say that if the evidence of prosecutrix remains consistent, reliable and trustworthy and defence fails to succeed to create any doubt or suspicion on her testimony, then, it would be safe to convict the accused.

20. As far as the statement of victim is concerned, she has stated her date of birth to be 01.05.1993, according to which she was about more than 17 years on the date of occurrence. Any how it is admitted position that she was above 16 years on the date of occurrence. The victim has stated that on the date of incident, she was going to take medicine. She did not go to school. When she reached near the tube well of Jagdish, she met Ravindra and Ankit. Ravindra caught her hands and Ankit pushed her from behind. They took her in a sugar-cane field. Ravindra broke open the tape of her Salwar and both raped her. When Ankit raped her, Ravindra caught her hands and when Ravindra raped her, Ankit caught her hands. She raised alarm when Mukesh and Mangey came there. Mukesh telephoned her father who came, she was practically unconscious by that time. I was constrained to see as to how a fishing cross-examination was done on this witness. An extra-ordinary lengthy cross-examination was conducted on her and all irrelevant questions were put to her. She admitted that initially her father and uncle were not inimical but presently they were having inimical terms. She has stated that at the time of incident, she was wearing her school uniform because initially she decided to go to school, but since she was feeling nausea, she decided to go to the doctor. When she was being raped she was wearing suit, her Salwar and underwear, which were taken off and kept separately. This fact finds corroboration from the statement of doctor PW-5 Dr. Amita Singh, who has stated that there were no injuries on the breast of the victim. When she was not completely disrobed, she would not sustain injuries on her breast. Further, the victim has stated in her statement that she was made to fall when she was standing and when she raised alarm, Ravindra was raping her. When her father was called, she wore her clothes and remained sitting there for sometime. Further, she has stated that while rape was being committed, her mouth was pressed and as soon as she opened her mouth, she raised alarm. Later on, Mukesh and Mange came there. In spite of extensive fishing cross-examination conducted on this witness, there is no iota of evidence to discredit her testimony as regards the factum of rape is concerned. It has been established by the evidence of this witness that Ravindra raped her. Since the matter of Ankit is pending before the Juvenile Justice Board, his matter need not be discussed here.

21. It is trite law that in the cases of rape, it is not necessary that the victim should sustain injuries, but in this case, the victim has sustained injuries. The learned counsel for appellant has submitted that the medical report of the victim cannot be relied upon because the injuries have been noted by a private doctor. Hence, it cannot be relied upon. This is not a case in which there were minor injuries which could have been managed by the victim. In fact, the injuries sustained by the victim were serious as regards the danger to her life was concerned, because she was profusely bleeding. If bleeding would not have been controlled, it would have been difficult to save her life. According to Ext. Ka-7, the victim was not able to give any response to the questions. Her pulses were not able to palpate and blood pressure was not recordable. It appears that on humanitarian grounds, home-guard Kuldeep who brought the patient, requested the doctor to explain the risk to attendant who was Ram Naresh Tomar, Pradhanpati to whom the risk was explained by the doctor. Haemoglobin of the victim was 7.29, her blood group was A positive. A fresh tear was seen in the hymen at 6 o'clock position and a big tear on the post-vaginal wall was seen standing from the mid-line to the lateral vaginal wall on both the sides. A tear was also seen on the perineum in the midline. The clothes were handed over to the Constable, the wound was stitched and the bleeding was controlled. PW-5 Dr. Amita Singh stated that the patient was unable to speak. She was unconscious. Except on the private parts, she had no injuries on her body.

22. There is nothing in the cross-examination of PW-5 Dr. Amita Singh which could discredit her testimony. According to this witness, the victim was stated to be in danger although the doctor had asked the attendants to take the victim to the government hospital but since her condition was serious, the attendants wanted the victim to be treated at private hospital itself where she was admitted. Dr. Neera Panwar, PW-3, has stated that since the victim was already treated at private hospital, hence she just referred the victim to the Higher Centre because the victim did not go herself to medical examination. It appears that since the wound was stitched and the medical aid was given and the condition of the patient had been controlled, hence the attendants required not to get her medically examined at the Government Hospital. Reverting back to her statement, the victim PW-2 has stated that she remained in Astha Hospital for 5-6 days. She was unconscious, hence she did not know as to who accompanied her to the hospital, but she gained conscious in the night after the date on which the incident took place. She admitted that she was not got checked at the government hospital, she was examined at the Astha Hospital. A fishing cross-examination was done as to at what time she reached the government hospital, at what time she reached the private hospital and who accompanied her. Although she has given the answers to these questions, but I think that it would not be expected that the victim who suffered rape and was bleeding profusely would remember all these things. The prime consideration at that time would be saving the life of victim than resorting to legal formalities. Hence, defence miserably failed to discredit the testimony of this witness.

23. The learned counsel for the defence has submitted that the witnesses who have come on the spot were not examined which causes a dent in the prosecution case. I do not think so because the statement of victim is intact and trustworthy, hence there is no necessity of any corroboration so far as the factual aspect of the matter is concerned since the medical evidence corroborates the brutal rape on the victim who has specifically stated in her statement that she did not give consent to the act of rape.

24. In (2015) 4 SCC 762 Deepak Vs. State of Haryana, the Apex Court in para - 24 has observed as follows:-

"In order to enable the court to draw presumption as contained in Section 114-A against the accused, it is necessary to first prove the commission of sexual intercourse by the accused on the prosecutrix and second, it should be proved that it was done without the consent of the prosecutrix. Once the prosecutrix states in her evidence that she did not consent to act of sexual intercourse done by the accused on her which, as per her statement, was committed by the accused against her will and the accused failed to give any satisfactory explanation in his defence evidence on this issue, the court will be entitled to draw the presumption under Section 114-A of the Indian Evidence Act against the accused holding that he committed the act of sexual intercourse on the prosecutrix against her will and without her consent. The question as to whether the sexual intercourse was done with or without consent being a question of fact has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Indian Evidence Act."

25. Apex Court in Banti Alias Balvinder Singh Vs. State of Madhya Pradesh, 1992 CrilJ 715, which is a case of gang rape has observed as follows:-

"It may be stated here that this is a case of gang rape. A woman, howsoever dissolute she may be, would not ordinarily consent to insulting, humiliating and repulsive act of sexual intercourse on her by a number of persons, as if she were a chattel for public use. The law recognises that a woman even of easy virtue, or even a whore for that matter, has personal dignity and honour. She cannot be violated, if only because of her lowly profession. A presumption has been enacted in Section 114A of the Evidence Act which says that in a case inter alia of gang rape, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Hence the legal position is that if the fact of sexual intercourse by the accused is proved, the evidence of the woman in a case of gang rape that she did not consent to sexual intercourse would have to be believed and it will not help the defence merely to show that the woman was of easy virtue. It is true that the presumption about want of consent is not conclusive. Evidence may still be given to disprove it. But in the absence of any evidence of disproof, there is no option with the Court but to raise a presumption about non-consent if circumstances for raising the presumption Under Section 114A exist. It must however be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals. It may be difficult to believe a woman of immoral character if she says that some persons had sexual intercourse with her unless there existed satisfactory proof in support of the story of sexual intercourse."

26. Coming to the case in hand, I find that the prosecutrix in her statement in clear terms has stated that she did not give her consent for commission of rape to the appellant and that the act of sexual violence was committed on her against her will. The appellant was not able to give any satisfactory explanation in his statement recorded under Section 313 Cr.P.C. Nor he was able to adduce any defence evidence to rebut the presumption contained under Section 114-A of the Evidence Act against him. So far as the commission of sexual intercourse is concerned, it is proved by the oral and medical evidence that the appellant performed rape on the prosecutrix. The testimony of the prosecutrix is vital.

27. I am quite aware of the provisions of law regarding the medical examination of the victim prescribed under Section 164-A Cr.P.C., which reads as follows:-

"164 A. Medical examination of the victim of rape. - (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of a such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her and prepare a report of his examination giving the following particulars, namely:-

(I) the name and address of the woman and of the person by whom she was brought;

(II) the age of the woman;

(III) the description of material taken from the person of the woman for DNA profiling;

(IV) marks of injury, if any, on the person of the woman;

(V) general mental condition of the woman; and

(VI) other material particulars in reasonable detail.

(3)  The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigation officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Explanation. - For the purposes of this section, "examination" and "registered medical practitioner" shall have the same meanings as in section 53."

28. The reason for not getting the victim examined by government doctor has been very well plausibly explained in as much as the victim was bleeding profusely and if the attendants would have taken her to the government hospital there were chances that she would have collapsed due to excessive bleeding. Besides this, another reason why I am inclined to rely on the prosecution case is the forensic lab report, according to which on Salwar, underwear, baniyan, Kurta and Chunni blood stains were found. On the underwear sperms were found and on the underwear semen was also found. This clearly supports the prosecution case. The reference slip of the doctor of government hospital is Ext. Ka-2 to whom the victim was taken but she referred the victim to the Higher Centre.

29. The Investigating Officer PW-4, Ramji Lal has stated that on 23.12.2010 the apparel of the victim was sent for forensic lab examination. He has stated that even in the first information report role of the rape was assigned to Ravindra and the victim has stated to him during her statement under Section 161 Cr.P.C. that she was raped by Ravindra.

30. The learned counsel for appellant has also submitted that the victim was a young lady. At the time of incident accused Ravindra was also about 20 years of age because as per his statement recorded under Section 313 Cr.P.C, which was recorded on 18.08.2012. Occurrence is said to have taken place on 23.09.2010. Hence, at the time of incident, he was a lad of 19 years of age. He has been convicted and sentenced to 10 years' rigorous imprisonment. Hence, his sentence be reduced.

31. The law of reduction of sentence has been laid down by the Apex Court in the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Hon'ble Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:

"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 such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

32. The accused appellant has been convicted under Section 376(2)(g) IPC. Section 376(2)(g) IPC reads as follows :-

"(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2.--"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children.

Explanation 3.--"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation."

33. The minimum sentence which could be imposed under Section 376 (2) (g) is ten years. The Court imposed the minimum sentence keeping in view the manner in which rape was committed in a ghastly and brutal way and how the life and soul of the victim and her family was shattered, I do not find it to be a fit case in which sentence can be reduced from the minimum sentence awarded by the Trial Court.

34. There is no force in the appeal. Hence, it is dismissed.

35. The appellant is in jail. The appellant shall serve out his remainder of sentence.

36. Let a copy of this order of sent to the concerned Court below.

Order Date :- 18.5.2016

LBY