Dharmendra vs State Of U.P.
2016 Latest Caselaw 5886 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                 AFR
 
                                                               Reserved on 24.8.2016
 
                                                               Delivered on 16.09.2016
 

 
Case :- CRIMINAL APPEAL No. - 1408 of 2014
 
Appellant :- Dharmendra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sunil Vashisth,Adesh Kumar,Ashish Singh,Brijesh Sahai,Rakesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Pratyush Kumar,J.

The instant appeal filed on behalf of accused-appellant is directed against the judgment and order dated 20.3.2014 passed by Shri J.K. Tiwari, Additional Sessions Judge, Court No.7, Meerut in S.T. No.331 of 2013 (State Vs. Dharmendra) whereby, the appellant has been convicted under Sections 376, 504, 506, IPC and sentenced to undergo rigorous imprisonment for a period of seven years with fine of Rs.5,000/-, rigorous imprisonment for a period of one year with fine of Rs.1,000/- and rigorous imprisonment for a period of three years with fine of Rs.2,000/- respectively. In default of payment of fine he has been directed to further undergo six months' additional imprisonment. All the sentences have been directed to run concurrently.

Heard Shri Rakesh Kumar Srivastava, learned counsel for the appellant, Shri Shailendra Awasthi, learned AGA for the State-Respondent and perused the record.

The facts giving rise to the present appeal may be summarised as under:-

That on 20.9.2012 at 4.00 p.m. Ranveer gave a written report at police station Kharkhoda stating therein that on that day at 10.00 a.m. his minor daughter, hereinafter referred as victim, aged about 16 years had gone to the field to bring fodder. Dharmendra, a co-villager finding her alone in the field after showing country made pistol had raped her forcibly. At the alarm raised by her, his son Sumit aged about 14 years, who was taking Buggi to bring fodder from the field, reached there. At that Dharmendra had threatened him to kill him and asked him to remain silent and ran away. His son informed him. He had brought his daughter to lodge the FIR. Prior to that in view of sensitivity of the matter he approached the respectable persons of the village and father of the accused, but none came and father of Dharmendra had abused him and threatened to kill him and his family.

At this check FIR was scribed. Case Crime No.563 of 2012 under Sections 376, 504, 506, IPC was registered at P.S. Kharkhoda and investigation was entrusted to S.I. Sanjay Singh, who started the investigation and recorded the statements of inter alia first informant and his son Sumit on the same day. Next day he inspected the spot, took into his possession clothes of the victim and recorded her statement. Statement of victim was also recorded under Section 164, Cr.P.C. After completing the investigation charge sheet was submitted.

The appellant stood for trial before the Court of Session, where he was charged under Sections 376, 504, 506, IPC, on his denial he was tried, convicted and sentenced as above. Feeling aggrieved the instant appeal has been preferred.

Learned counsel for the appellant in support of the appeal has submitted that no incident of rape had taken place and appellant was falsely implicated due to land dispute. This fact has been admitted by the victim, PW-1 in her cross examination. His second argument is that the victim at the relevant time was major, in support of this argument he has referred the medical evidence in the form of statement of Dr. Savita Vashisth, PW-4. His third argument is that there are discrepancies and contradictions in the evidence of prosecution specially the victim PW-1 in her examination-in-chief has stated that occurrence took place at 10.00 a.m. whereas during cross examination she says that at 10.00 a.m. she left her house to the field which took about half an hour. In this reference he further submits that in the examination-in-chief victim, PW-1 has claimed that she was alone when accused caught her and raped her, but during cross examination she has stated that her brother was with her. His fourth argument is that medical evidence does not support the prosecution version, no external mark of injury was found on her person nor internal examination reflected that the victim was raped.

On behalf of State-Respondent these arguments have been repelled. Learned AGA has submitted that enmity is double edged weapon. On its basis evidence of victim, PW-1 and Sumit, PW-3 cannot be discarded. He further submits that age of the victim has been opined by the doctor to be 17 years. She was a little mentally challenged person and she has categorically stated that rape was forcible, therefore, in the present case age of the victim is not material. Regarding contradictions he submits that these are minor and none of them touches the substratum of prosecution story and factum of rape.

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 respective argument I would like to place on record broad features of the evidence of the parties. They are summarized as under:-

Victim, PW-1, before administering oath and keeping in view her mental condition trial Judge had asked her questions to ensure that she realizes the sanctity of oath, thereafter administered the oath to her. She has reiterated the facts stated in the first information report. She has proved her statement recorded under Section 164, Cr.P.C., Exhibit Ka-1.

Ranveer, PW-2 is the first informant and father of the victim. He has proved written report, Exhibit Ka-2, memo of sealing the clothes of the victim, Exhibit Ka-3. He has reiterated the facts mentioned in the first information report.

Sumit, PW-3 is the brother of the victim. He has given eye witness account and supported the facts stated by his sister.

Dr. Savita Vashisth, PW-4 had medically examined the victim on 20.9.2012 at 6.45 p.m. According to her, the victim was physically developed. During internal examination she found her hymen to be old torn. She has expressed her inability to give any opinion about commission of rape. She has proved medical examination report, Exhibit Ka-4.

S.I. Sanjay Kumar, PW-5 is the Investigating Officer. He gave details of the steps taken in the course of investigation. He has proved site plan, Exhibit Ka-5 and charge sheet Exhibit Ka-6.

Constable Surendra Singh, PW-6 is the scribe of check FIR. He has proved check FIR, Exhibit Ka-7, copy of the report of the General Diary, Exhibit Ka-8.

Dr. M.P. Singh, PW-7 is the doctor, who on the basis of radiological examination determined the age of the victim to be 17 years. He has proved this report, Exhibit Ka-9.

Dr. A.K. Jain, PW-8 is the Radiologist under whose supervision X-ray examination of the victim was conducted. He has identified X-ray plates, material Exhibit 1 & 2 and proved radiological report, Exhibit Ka-10.

Before the trial court case of the defence was of total denial on account of land dispute, which in brief is that grandfather of the victim had given 40 bigha land to his sister Phoolwati. Accused Dharmendra is real grandson of Phoolwati residing in the village of the first informant on the strength of property given by grandfather of the victim.

After close of prosecution evidence statement of the accused was recorded under Section 313, Cr.P.C. whereby he has denied the facts stated by the prosecution witnesses. According to him, he did not commit rape with the victim. She has deposed falsely on the pressure of her father. There was dispute regarding gher (place where cattle and grains are kept) between him and the first informant. According to him, first informant had occupied his gher.

In the defence on behalf of the appellant three witnesses were examined.

Ajay Kumar, A.S.I., DW-1 has deposed that in the General Diary dated 20.9.2012 of P.S. Kharkhoda in report no.47 return of the victim after medical examination has not been entered. Thereafter, there is no entry to show that any witness was examined by the Investigating Officer.

Momraj, DW-2 has deposed that first informant is his relative and accused Dharmendra is his nephew. Earlier accused used to live at Village Mahtampur. When he received land at Dhantaley (village where the first informant resides) he started to live there. Between the first informant and Dharmendra dispute arose on account of boundary of the fields. First informant had illegally occupied gher of the Dharmendra. Panchayat was held to resolve the dispute, but the first informant declined to vacate the gher and threatened to falsely implicate the accused. According to him, victim never goes to fields alone.

Braham Singh, DW-3 is resident of Village Panauta. He has claimed himself to be member of the panchayat. According to him, dispute regarding land of Dharmendra occupied by the first informant could not be resolved in the panchayat and first informant had threatened to falsely implicate the appellant in a case of rape.

One witness Yogendra Sharma, CW-1 was examined by the trial court itself, who is clerk of the school where at the relevant time Sumit, PW-3 studied. According to him, on the day of occurrence he was absent from the school.

In the present appeal, as gathered from the statement of Dr. Savita Vashisth, PW-4, no mark of external injury nor any injury on the private parts of the victim were found, therefore, the medical evidence in the present case is inconclusive either to prove or disprove the truthfulness of the prosecution version.

So far as enmity is concerned, on behalf of the appellant my attention has been drawn towards the statement made by the victim, PW-1 whereat she has admitted that 40 bigha land were given by her grandfather to grandmother of the appellant and 80 bigha of land were given to Kundan, father of first informant Ranveer, PW-2. She has further admitted that her father had occupied gher of Phoolwati, grandmother of the appellant.

On behalf of Momraj, DW-2 and Braham Singh, DW-3 have been examined to show that a panchayat took place about dispute of gher of Phoolwati and father of the victim declined to accept the verdict of the panchayat and threatened the appellant to falsely implicate him in a false case of rape.

So far as enmity on account of agricultural land and gher is concerned, it is established, but I find evidence of Momraj, DW-2 and Braham Singh, DW-3 not worthy of reliance. Momraj, DW-2 is not resident of Dhantaley. His presence during panchayat has not been explained. He could not describe correctly where houses of first informant and the appellant are situated. Evidence of Braham Singh, DW-3 also does not inspire confidence. He is resident of another village. According to him, he was also called for panchayat, but according to him, he was not aware about the dispute. According to him, he only knew Jagmal, who had died. For these reasons, I find evidence of defence on the point of panchayat and threat extended by the first informant to be not substantiated.

In reference to determination of age though argument has been advanced that victim was major. Since plea of consenting party has not been raised and victim is little mentally challenged person, her consent, if any, would not confer any benefit to the appellant, therefore, age of the victim bears no significance in the present case.

The main thrust of the argument advanced on behalf of the appellant is about the appreciation of evidence of statement of the victim, PW-1 and Sumit, PW-3. At this juncture I would like to refresh my mind about some principles prescribing the manner in which evidence should be appreciated.

The Hon'ble Apex Court in the case of Krishnan Vs. State, AIR 2003 SC 2978 in reference to appreciation of eye witness account has observed that it would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the 'credit' of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

Keeping in view of these principles in mind I have gone through the statement of the victim, PW-1. Learned trial Judge before administering her oath has put some questions to satisfy about her understanding about the sanctity of oath. After recording his satisfaction oath was administered and her statement was recorded. On behalf of the appellant first objection has been raised that after medical examination she did not return to the police station, therefore, Investigating Officer had no opportunity to record her statement on that day. Learned counsel for the appellant had made reference to the evidence of A.S.I. Ajay Kumar, DW-1, who has made this statement that on 20.9.2012 after medical examination return of the victim has not been entered in the General Diary. I do not find this ground to be relevant at all because in the General Diary only entry and exit of police personnel are entered as also registration of case or coming of first informant and the injured. It is not expected that in the General Diary entry would be made that after medical examination injured or victim returned to the police station or not, therefore, first ground is without substance.

The second argument is that there are contradictions in the statement of victim, PW-1. These contradictions have been referred by me hereinbefore. They do not touch the substratum of prosecution version. The Hon'ble Apex Court in the case of Shri Narain Saha Vs. State of Tripura (2004) 7 SCC 775 has held that minor discrepancies in evidence are of no consequence.

Third ground is that evidence of victim is not corroborated from the medical evidence. As held in Krishnan's case (supra) while assessing intrinsic value of the statement of a witness such factors are not to be taken into account. More so in a case of rape uncorroborated testimony of the victim, if found reliable, is sufficient to sustain the conviction vide Santosh Mullya Vs. State of Karnataka, AIR 2010 SC 2247. In view of the legal position, third argument is also rejected.

Fourth argument is that the Investigating Officer did not send clothes of the victim for scientific examination or he found Chari (green fodder) disturbed at the place of occurrence is also of no significance. The Hon'ble Apex Court has held that lapses of the Investigating Officer would not be fatal for prosecution where ocular testimony is found credible and cogent (State of West Bengal Vs. Mir Mohd. Umar, 2000 (41) ACC 298 SC).

Victim is the natural and probable witness of the rape. She has given satisfactory answers to the questions put to her during cross examination. Whether her answer to any question would be favourable for the prosecution or for the defence does not bear any significance to her. She has frankly admitted dispute regarding gher. She has frankly admitted that she had bitten the appellant with her teeth out of anger. She does not worship the God. After going through her statement I found her testimony to be worthy of reliance and it inspires confidence of the Court.

The statement of the victim, PW-1 is corroborated by the statement of Sumit, PW-3, brother of the victim. First during trial defence took the plea that on that day he was at his school, but this plea stands negated by the statement of Yogendra Sharma, CW-1, clerk of Janhit Inter College where Sumit was studying at the relevant time. On the basis of original attendance register he has deposed that on 20.9.2012 Sumit was absent from his class. Extract of the original attendance register has been proved by him and photocopy thereof duly verified by the witness is available on record as Exhibit Ka-11. The witness has given reasons for his presence on the spot. He is natural and probable witness. He has faced the test of cross examination successfully. His testimony also inspires confidence of the court.

In this way prosecution has adduced the victim, PW-1 herself, who has supported the charge of rape by the appellant and her testimony is duly corroborated by the statement of Sumit, PW-3. Testimonies of both these are trustworthy, reliable and they inspire confidence of the Court. The arguments questioning their veracity are without substance, hence, they are rejected.

No other argument has been raised on behalf of the appellant. The findings recorded by the learned trial Judge are well substantiated from the record. Evidence has been rightly appreciated. Cogent reasons have been given in support of the findings of guilt. Appeal has no substance and deserves to be dismissed.

Appeal is dismissed. The appellant is in jail. He shall serve out his sentence. The period already undergone by him shall be adjusted in accordance with the provisions contained in Section 428, Cr.P.C.

Office is directed to communicate this decision to the court concerned forthwith and to send back the lower court's record.

(Pratyush Kumar, J.)

Order Date :- 16.09.2016

T. Sinha