Dinesh Lodh vs State Of U.P.
2017 Latest Caselaw 3458 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
Court No.15.
 

 
Case :- CRIMINAL APPEAL No. - 352 of 2016
 

 
Appellant :- Dinesh Lodh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Manish Mani Sharma,Rishi Raj Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Sessions Trial No.371 of 2013,
 
Under Sections 376 and 506 IPC, 
 
Crime No.675 of 2012, 
 
Police Station Shiv Garh,
 
District Raebareli.
 

 

 
Hon'ble Satya Narain Agnihotri, J.

1. Instant appeal has been directed against the impugned judgment and order dated 14.1.2016 passed by learned Additional Sessions Judge/F.T.C. No.1, Raebareli, whereby learned trial Judge held guilty to accused appellant Dinesh Lodh under Sections 376 and 506 I.P.C. and sentenced 7 years rigirous imprisonment with fine of Rs.10,000/- and imprisonment of two years under Section 506 I.P.C.

2. Facts giving rise to this appeal may be summerised as under:-

Victim herself submitted an application Exhibit Ka-1 in the office of Police Station Shiv Garh, District Raebareli alleging therein that on 16.12.2012 she had gone to meet the call of nature at about 8 p.m. in fields of Village Padampur, Police Station Shiv Garh and when she was coming back, accused appellant Dinesh Lodh obstructed her way, forcibly took away her in his lap, brought inside the hut and committed rape upon her. She further alleged that she raised alarm but none came to save her. The accused appellant threatened to kill the victim if she told this mishappening to anyone. Later on complainant/victim came at her house and narrated entire story to her parents. The accused appellant threatened the victim that since she had told this mishappening to her parents thats why he would again commit rape with her.

3. In pursuance of Exhibit Ka-1 formal first information report was registered on 19.12.2012 at 19.45 O'clock. The investigation was commenced, statement of victim was recorded by the Investigating Officer Ramesh Chandra Pushkar who visited the place of occurrence and site plan Exhibit Ka-5 was prepared. The victim was medically examined on 20.12.2012 by Dr. Vandna Yadav. For the determination of rape and age, the victim was referred to District Hospital Raebareli. After completion of investigation, charge-sheet Exhibit Ka-6 was filed in the Court. During investigation statements of victim under Section 161 and 164 Cr.P.C. were recorded.

4. The accused appellant in his statement under Section 313 Cr.P.C. denied the allegation and evidence tendered by the prosecution and stated that he has falsely been implicated due to enmity and he would like to submit defence.

5. To prove the guilt of the accused appellant, prosecution examined witnesses (hereinafter referred to as P.Ws.) P.W.-1 victim, P.W.-2 Sri Anjani Kumar Mishra father of victim, P.W.-3 Dr. Syed Altaf Hussain Radiologist, P.W.-4 Dr. Vandna Yadav, P.W.-5 Sri Ramesh Chandra Pushkar Investigating Officer (hereinafter referred to as the I.O.), P.W.-6 Sri Sant Lal Kureel and P.W.-7 Sri Mahesh Prasad Tripathi, Head Clerk Barkhandi Vidyapeeth Inter College Shivgarh, Raebareli.

6. Though the accused proposed to examine witnesses and adduce evidence but did not examine any witness and adduced three documents through Index 343-B in his defence.

7. Heard learned counsel for the appellant and Sri P.K. Singh, learned A.G.A.

8. P.W.-1 victim in her statement stated that on 16.12.2012 at about 8 P.M. she had gone for answering the natural call in the field from her house and when she was coming back after answering the call of nature, the accused appellant Dinesh Lodh obstructed her way, took out her in his lap, entered in a hut situated near the place of occurrence and lie down her on the cot which was kept there. Thereafter accused appellant undressed the victim and himself and committed rape upon her forcibly though the victim raised alarm but none came to save her. The victim further narrated that after committing rape the accused appellant ran way from the hut and before leaving the hut threatened the victim to kill her if she told this mishappening to anyone. Due to aforesaid threat the complainant/victim could not dare to lodge the F.I.R. within reasonable time. It is further narrated by the victim that when she came at her house after the aforesaid mishapening she narrated entire events to her parents. She further narrated that she had written the F.I.R. Exhibit Ka-1 and had gone to police station with her father and submitted said application in the police station, in pursuance of which a formal F.l.R. was registered. P.W.-1 victim was subjected to cross-examination by the accused appellant but nothing could be extracted in favour of the accused appellant.

9. P.W.-2 Sri Anjani Kumar Mishra father of the victim is a witness of secondary evidence, who stated that when his daughter/victim informed him about the mishappening committed by the accused appellant Dinesh Lodh, he had gone to the house of the accused appellant for complaint, but he had threatened to the witness for dire consequences. The evidence of this witness is not of much relevance because he had not witnessed the occurrence.

10. P.W.-3 Dr. Syed Altaf Hussain stated in his statement that on 21.12.2012 on the reference of Medical Officer, Women Hospital, Raebareli he got prepared the x-rays of both knees, elbows and wrists of the victim through Lab Technician and prepared the report ascertaining the age of the victim which is Exhibit Ka-2.

11. P.W.-4 Dr. Vandna Yadav stated in her statement that she had examined the person of victim on 20.12.2012 and found no injury upon genital parts of the body of the victim and uterine was normal. She further narrated that breast and axillary hairs were well developed. P.W.-4 further stated that smear of vaginal fluid was prepared for the examination of sperm and gonococci and the same was sent to pathologist. No sperm or gonococci was found. The report of personal examination of victim Exhibit Ka-3 and the supplementary report Exhibit Ka-4 are on the record. According to supplementary report the joint of elbow, wrist and knee were fused. This witness was subjected to hectic cross-examination but nothing could be extracted in favour of the appellant.

12. P.W.-5 Sri Ramesh Chandra Pushkar, I.O. is a witness of formal nature who proved that after registration of the crime he started investigation and recorded statement of complainant and his father. Later on, on the same day he visited the place of incident and with the help of complainant he inspected the place of occurrence and prepared the site plan Exhibit Ka-2. The witness further stated that after completion of investigation, he submitted charge-sheet Exhibit Ka-6 in the court.

13. P.W.-6 Sant Ram Kureel tendered secondary evidence and stated that he is familiar with the writing and signature of Constable Clerk Suresh alias Munna who prepared Chik F.I.R. Exhibit Ka-7 and G.D. Exhibit Ka-8.

14. P.W.-7 Mahesh Prasad Tiwari, Head Clerk of Barkhandi Vidyapeeth Inter College, Shivgarh, Raebareli proved that he has brought with him Scholarship Registrar of abovenamed college in which the entries are from Serial No. 34197 to 34296. He further narrated that at Entry No.34204 name of victim has been entered and the date of birth of victim has been entered 10.8.1997. The photostat copy of entry of Scholarship Registrar has been proved as Exhibit Ka-9.

15. P.W.-1 complainant is the star witness with whom the heinous crime was committed by the accused appellant. The victim unequivocally and unerringly supported which she had narrated in Exhibit Ka-1 F.I.R. and statement under Section 161 and 164 Cr.P.C. The witness was subjected to gruesome cross-examination by the accused appellant but nothing could be extracted in favour of the accused appellant.

16. As far as evidence of other witnesses is concerned, P.W.-2 tendered secondary evidence. He stated on oath in the Court the facts which were intimated to him by his daughter P.W.-1 (victim). Thus the evidence of P.W.-2 has no relevance for the disposal of this appeal. Other witnesses P.W.-3 and P.W.-4 are doctors and both the witnesses tendered evidence in the form of their opinion. P.W.-5 and 6 are the police officials, they are also the witnesses of formal character.

17. P.W.-7 who is the witness of fact, brought the document of Barkhandi Vidyapeeth Inter College, Shivgarh, Raebareli in the court and proved that in the record of college the date of birth of victim has been recorded 10.8.1997. This witness submitted certified photo copy of scholarship register, according to which victim passed Intermediate examination in first division and her date of birth recorded in the said register is 10.8.1997.

18. Learned counsel for the appellant submitted that according to prosecution the mishappening of rape was occurred on 16.12.2012 at about 8 P.M. but the F.I.R. was lodged on 19.12.2012 at 19.45 O'clock i.e. about after a delay of three and half days but no explanation had been tendered regarding the delay. He further submitted that since the F.I.R. was lodged after a gap of three and half days thats why false implication of the appellant could not be ruled out.

19. Learned A.G.A. submitted that it is true that F.I.R. was lodged after a delay of three and half days but the explanation has been given by the victim herself through F.I.R. Exhibit Ka-1 and in her statement.

20. In view of the rival submissions of learned counsel for the parties, I have gone through the statement of P.W.-1 victim and the F.I.R. Exhibit Ka-1 in which I found that victim herself stated in Exhibit Ka-1 that accused appellant threatened her to kill if she told anyone regarding commission of rape. P.W.-2 stated that when he came to know about commission of rape with his daughter, he had gone to the house of the appellant for lodging complaint, where the accused appellant threatened him for dire consequences. P.W.-1 in her statement narrated that accused appellant threatened her thats why she could not dare to make complaint against him at once. She further narrated that when accused came to know that she had intimated the fact of commission of rape by the accused appellant to her parent then he further threatened that he would again commit rape with her. The statement of P.W.-1 victim itself explanatory regarding the delay in lodging the F.I.R. Thus false implication of the appellant accused cannot be imagined.

21. Learned counsel for the appellant further submitted that victim was about 20 years of age at the time of commission of offence as opined by the P.W.-4 Dr. Vandna Yadav in her supplementary report.

22. Learned A.G.A. submitted that evidence of doctor is of no relevance where the documentary evidence regarding age is available on the record. Learned A.G.A. has placed reliance upon the judgment of Hon'ble Supreme Court State of Madhya Pradesh vs. Anoop Singh reported in (2015)7 S.C.C. 773 and another judgment of Hon'ble Supreme Court Janrail Singh vs. State of Haryana reported in (2013)7 S.C.C. 263. In Janrail's Singh's case (supra) Hon'ble Apex Court has held that age of victim or accused who claims to be juvenile shall be determined according to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. For ready reference, Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules) is reproduced hereinbelow:-

"12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),

(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

23. According to Rule 12 (3) of 2007 Rules for determination of age of any juvenile first of all the certificate of matriculation or equivalent shall be preferred and in absence of that the birth certificate of school first attended shall be considered and further in absence of above certificates, the birth certificate given by a corporation or a municipal authority or a panchayat shall be admissible and in absence of all above certificates, the opinion of medical practitioner shall be sought.

24. Since in case in hand the evidence of date of birth/age of the victim is available in the form of leaving certificate of the college, namely, Barkhandi Vidyapeeth Inter College, Shivgarh, Raebareli, the evidence of medical practitioner in the form of opinion cannot be based for determination of age of the victim. According to Exhibit Ka-9 the date of birth of victim recorded in the scholarship register of school is 10.8.1997, thats why at the time of commission of rape upon the victim her age was less than 16 years. The victim P.W.-1 was examined on this very fact and she again and again stated that her age was 15 years at the time of commission of crime. P.W.-2 Anjani Kumar, father of the victim also stated that age of her daughter at the time of commission of rape was 15 years. The appellant did not adduce any evidence which proved that age of victim at the time of commission of rape was more than 16 years.

25. Learned counsel for the appellant further submitted that victim was a consenting party for making physical relations with the accused appellant due to which no injury was found upon the person of victim at the time of medical examination. He further submitted that since the victim made consciously physical relation with the accused appellant thats why the accused appellant is entitled for acquittal.

26. Learned A.G.A. countered the submission of learned counsel for the appellant and submitted that the victim was about 15 years of age at the time of commission of crime and the accused appellant was fully grown-up young man thats why she failed to resist the accused appellant from establishing physical relation. Thus if no injury was found upon the person of the victim, it cannot be said that accused appellant has not raped the victim.

27. The statement of victim demonstrates that she has tried to resist the notorious and nefarious desire of the accused appellant but she could not succeed. Moreover, if P.W.-1 victim had given her consent to make physical relation by the accused appellant, in that event also accused appellant is not entitled to make physical relations with the victim because she was below the age of 16 years at the time of commission of offence i.e. on 16.12.2012. According to Section 375 I.P.C. the consent given by a girl, who is below the age of 18 years for making physical relation, has no relevance, since the accused appellant made physical relation with victim, who was minor below the age of 18 years and thus consent, if any, as harangued by the accused appellant has no weight, because being minor the victim was not aware about the pros and cons of her consent.

28. Learned counsel for the appellant lastly submitted that victim is an easy virtue lady and she is in habit of lodging complaints under Section 376 I.P.C. against several persons. Learned counsel cited the documents filed by the accused in his defence on 11.5.2015, which were purported to be submitted in Misc. Case No.574 of 2014 in the court of Chief Judicial Magistrate, Raebareli. In the said case on application of victim under Section 156(3) Cr.P.C. order was passed to lodge F.I.R. on the complaint of victim. Another paper cited by the appellant is application under Section 156(3) Cr.P).C. purported to be presented by the victim in which she had alleged that she is about 20 years of age on 20.11.2014. Another document alleged to be affidavit of victim sworn on 20.11.2014 has been cited in which victim alleged her age as 20 years on the date of swearing the affidavit.

29. I do not find any substance in the submission of learned counsel for the appellant because these documents were submitted in the court after the examination of P.W.-1 victim and she was never confronted with theses documents at the time of her examination thats why in the light of these documents it cannot be opined that age of the victim was 20 years at the time of commission of offence. As far as the question of her habit for lodging F.I.R. under Section 376 I.P.C. against several persons is concerned, I do not find any substance in this submission because no one is empowered or entitled to pounce up on the person of lady or girl who is of an easy virtue. It is the will of any lady to establish physical relation with any person of her choice, nobody can compel her to make relation forcibly and without her consent. Moresoever, according to evidence of prosecution at the time of commission of rape upon the victim by the accused appellant she was under the age of 16 years and being minor, legally she could not give consent for physical relation by any person and if any person makes physical relation with the consent of a minor girl then said consent is of no relevance and is immaterial as per provisions of Section 375 I.P.C.

30. In view of the above discussions and facts and circumstances of the case, I do not find any substance in the appeal and find that learned trial Judge passed impugned judgment and order after due consideration of evidence and facts available on the record and rightly held guilty to the accused appellant.

31. Before parting, I would like to say that learned trial Judge failed to consider the provisions of Section 357 of Criminal Procedure Code, according to which victim has to be compensated for her injury suffered and expenses incurred. Since victim suffered injury thats why she will get Rs.10,000/- as compensation if the fine is recovered from the appellant. With this modification the appeal is dismissed being devoid of merit. The judgment and order of learned Additional Sessions Judge/F.T.C. I, Raebareli dated 14.1.2016 is affirmed.

33. Let this judgment be notified to the learned trial Judge for compliance and report within one and half month.

34. The record of learned trial Judge be sent back forthwith.

Dated: 22.8.2017.

Rakesh

(S.N. Agnihotri, J)