Mainpal vs State
2021 Latest Caselaw 11028 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 5.8.2021
 
Delivered on 31.08.2021
 
Case :- CRIMINAL APPEAL No. - 508 of 1988
 
Appellant :- Mainpal
 
Respondent :- State
 
Counsel for Appellant :- Anil Malik,Kulveer Singh
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Syed Aftab Husain Rizvi,J.

1. Heard Sri Kulveer singh, learned counsel for the appellant, learned AGA for the state and perused the material on record.

2. This Criminal Appeal has been filed against the judgment and order dated 29.2.1988 passed by Vth Additional Session Judge, Saharanpur in Sessions Trial No. 167 of 1987 arising out of Case Crime No. 13 of 1986, Police Station - Manglore, District - Saharanpur convicting the appellant under section 376 IPC for five years rigorous imprisonment and to pay a fine of Rs. 1,000/- and in default of fine three months Simple imprisonment.

3. In brief, the prosecution case is that complainant - Chandu gave a written information at Police Station - Mangalore that on 14.1.1986 his wife was cutting grass in field of Satyawan. His Bhabhi was also cutting grass at some distance. At about 2:30 p.m. his co-villager Mainpal came from inside the sugar-cane field and forcefully dragged his wife into the sugar-cane field intimidating her and pressing her mouth and committed rape with her. On getting opportunity, his wife make a noise, then his sister-in-law (Bhabhi) - Rajo went inside the sugar-cane field and saw Mainpal committing rape with the wife of the complainant. Seeing this incident, Rajo made a noise and on her noise, other co-villager- Rajpal came there, then Mainpal holding his trouser in his hand ran away from there, intimidating and saying that if any action is taken, he will kill all of them. When complainant came to the house, his wife told the whole incident but due to fear, he could not go to the Police Station. On getting opportunity, he went to the Police Station for lodging the FIR. On the aforesaid information, Case Crime No. 13 of 1986 under Section 376 IPC was registered against accused - Mainpal on 15.1.1986. Investigating officer recorded the statement of complainant, victim and other witnesses. Victim was also medically examined. Investigating officer also took in possession one piece of Salwar which the victim was wearing at the time of occurrence and prepared its memo. After completion of the investigation, charge sheet was submitted.

4. Learned trial court framed charge against the accused - Mainpal under Section 376 IPC, accused denied it and claimed for trial. Prosecution produced four witnesses. Statement of accused was recorded under Section 313 Cr.P.C. Accused denied the prosecution version and has further stated that he has been falsely implicated due to enmity. Learned trial court after hearing the arguments by the impugned judgement has held him guilty for offence under Section 376 IPC and sentenced him to five year rigorous imprisonment and fine of rupees 1000/-.

5. Victim was medically examined and his medico legal report and supplementary report are on record but the same have not been got proved by the prosecution. According to the medico legal report, height of the victim was 150 cm, weight 100 pounds. In External examination, breasts were well developed, axillary hair present. In internal examination, vagina admits two fingers easily, hymen torn, old & healed, uterus normal size. Victim was referred for X-ray to assess her age and vaginal smear examination for the presence of spermatozoa.

6. According to the supplementary report on basis of radiologist report her age was above 18 years. No opinion about rape was possible as she was used to sexual intercourse.

7. In all four witnesses have been examined by the prosecution out of which PW-1 is victim herself. She has fully corroborated the FIR allegations and has stated that at the time of occurrence she was cutting grass in the field. At about 2:00 - 2:30 pm, accused - Mainpal came from inside the sugar-cane field and forcefully dragged her against her will into the sugar-cane field and committed rape with her. On her noise, her Jethani - Rajo came there at that time accused was committing rape and thereafter he ran away holding his trouser in his hand, Rajpal also saw him running away. Rajo the eyewitness has also been examined as PW-2 and she has also corroborated the statement of PW-1 - the victim. Both these witnesses have been cross examined at length by the defence but there is no major discrepancy or contradiction in their statements which makes their statements unreliable or untrustworthy.

8. Learned counsel for the appellant contended that according to the prosecution case, accused forcefully dragged the victim into the sugar-cane field and put her down on the ground and committed rape in the field itself. Victim in her statement has also admitted that when she was forcefully dragged into the sugar-cane field then sugar-cane leaves rubbed against her body but no visible mark of injury has been found on the body of the victim in medical examination which is improbable. In the circumstances of the case the marks of abrasion / contusion should have been found on the body of the victim and the medical report does not support the ocular version and the testimony of the witness is not trustworthy.

This point was raised before the trial court and the trial court in paragraph 2 of page 10 has dealt with it and has observed that victim was medically examined after two days of the incident. At paragraph 6 of page 4, she has stated that when the accused caught her then she put some resistance and also requested the accused not to commit such act with her. In these circumstances, there was little possibility of injuries on the body of the victim. The aforesaid observation of learned trial court appears to be reasonable and proper. The absence of visible injuries, in the circumstances of the case does not make the prosecution version doubtful or unreliable.

In State of U.P. Vs. Pappu, (2005) 3 SCC 594, it has been held that absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused.

9. Learned counsel further contended that the alleged incident is of 14.1.1986 at 2:30 p.m. but first information report has been lodged on 15.1.1986 at 7:35 p.m. after more than 29 hours, so there is considerable delay in lodging the FIR. The explanation of delay as given in the FIR is not sufficient. In the oral testimony, it is that when complainant came in the evening the whole incident was narrated by the victim to him but no FIR was lodged on that day. On the next day, complainant went to his duty and thereafter FIR has been lodged in the evening so there is no sufficient explanation of the delay. This argument has also got no force. In the FIR itself, it is mentioned that complainant could not come to the police station due to fear and on getting opportunity he has come to lodge the FIR. It has also come in the evidence that complainant and victim belong to Schedule Caste while accused is Gurjar. He has threatened the complainant and victim of evil consequences if they lodge any report or take any action. Apart from this in case of such a nature, due to fear of social stigma, the people avoid to take any action promptly.

In the case of State of Punjab Vs. Gurmit Singh, 1996 (2) SCC 384, the Hon'ble Supreme Court has held as under:-

"The Courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in."

10. It is also well settled law that mere delay in lodging the FIR does not adversely affect the prosecution case unless it is proved that delay in lodging FIR was due to deliberation and consultation making it possible to frame innocent persons. In this case, there is no evidence on record to show that there was any deliberation or consultation and there is no reason for false implication.

11. Lastly, learned counsel for the appellant contended that the prosecution story is highly improbable because in the FIR it has been alleged that at the time of incident the victim along with her sister-in-law (Jethani) was cutting grass in the field of Satyawan when the accused forcefully dragged her into the sugar-cane field. In this circumstance, it was natural and probable that sister-in-law - Rajo should have noticed it at the very moment and should have made a hue and cry but nothing like this sort has happened and accused was successful in dragging the victim into sugar-cane field and committing rape with her. It appears from the circumstances that victim was a consenting party but when the incident was noticed by her sister-in-law (Jethani), the story as alleged in the FIR was cooked up. This argument has also no force because it has come in the evidence that sister-in-law of the victim was cutting grass 50 to 60 paces away from the victim. The victim - P.W.-1 in her examination-in-chief has stated that her Jethani was cutting grass in Arhar field 50 to 60 paces away from her while she was cutting grass in the sugar-cane field. In site plan, Exhibit (Ka-2) also the place where victim was cutting grass has been shown with letter (A) while the place where sister-in-law of the victim was cutting grass has been shown with letter (B) and the distance between the two is 64 paces. So it is clear from the evidence on record that at the time of incident two ladies were cutting grass at some distance, so there is nothing improbable in the prosecution story. Victim - P.W.-1 in her statement has also stated that she put some resistance and also requested to the accused for not committing such act with her so it cannot be said that she was a consenting party.

12. In State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384, it has been held by the Apex Court that "in cases involving sexual harassment, molestation, etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice."

13. In this case the victim has fully corroborated the allegations made in the FIR and another eye witness, P.W.-2 has also supported her. The oral statement of the two witnesses are consistent and there is no discrepancy or contradiction, and hence, no reason to disbelieve them.

14. Learned trial court has fully discussed and properly appreciated the entire evidence. There is no perversity or illegality in the findings of the learned trial court. From the evidence on record, the prosecution case stands proved and finding of conviction recorded by the trial court is just and proper. The sentence awarded by the trial court also need no interference.

15. The criminal appeal has no force and liable to be dismissed.

16. The criminal appeal is hereby dismissed.

17. Lower court record along with copy of the judgment be transmitted to the trial court immediately.

Order Date :- 31.08.2021

Arif