Dr. Ansar Ahmad Khan vs State Of U.P. And Anr.
2022 Latest Caselaw 1451 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							A.F.R.
 

 
Reserved on  05.04.2022
 
                                                                       Delivered on 26.04.2022
 
Court No. - 16
 

 
Case :- CRIMINAL REVISION No. - 650 of 2014
 

 
Revisionist :- Dr. Ansar Ahmad Khan
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Arun Sinha,Siddharth Sinha
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Brij Raj Singh,J.

1. Heard Sri Arun Sinha, learned counsel for the revisionist and Sri Ravish Chandra Mishra, learned AG.A. for the State and perused the record.

2. This Criminal Revision has been filed for setting aside the summoning order dated 03.07.2013 passed by Additional District & Sessions Judge, TECP-3, Lucknow in S.T. No.552/2012, State versus Deepak Verma arising out of Case Crime No.14/2012 of Police Station-Para, Lucknow summoning the revisionist as accused under Section 319 Cr.P.C. to face trial under Section 366/323/343/506 I.P.C.

3. The A.P.O. had moved application under Section 319 Cr.P.C. with averment that P.W. 1 - Jahanvi Yadav, P.W.2-Smt. Pammi Yadav and P.W.3-Km. Aarti have been examined by the court and their cross examination have also been recorded. The application under Section 319 Cr.P.C. is made to the effect that after looking into the statement of P.W.2- Arti recorded under Section 164 Cr.P.C. before the court, the complicity of Dr. Ansar Ahmad Khan in furtherance of the offence is found. Therefore, a prayer was made to summon the revisionist for trial. It has been further submitted that in the case of rape, no other evidence is required and the statement of the prosecutrix is sufficient. The prosecutrix had stated that the accused Deepak Verma had brought her to the clinic of Dr. A.A. Khan, the revisionist on the pretext that he will provide job to her with good emolument. She reached to the clinic of the revisionist at 6:00 p.m., where they asked her to go to the operation theater, which was situated in the basement. When she reached to the operation theater, nobody was present there. When she protested and asked them to allow her to go, she was beaten by the revisionist and Deepak Verma. As per statement of the prosecutrix, she was caught hold by the doctor i.e. the revisionist. She further stated that she heard the arguments between the revisionist-Dr. A.A. Khan and Deepak Verma and they were having dispute on the question that who will firstly commit sexual intercourse with her. On the application of the public prosecutor, the court had summoned the revisionist by order dated 03.07.2013.

4. Learned counsel for the revisionist has submitted that I.O. investigated the matter and collected the evidence and submitted his report. However, he did not find any evidence against the revisionist and the chargesheet was only filed against the co-accused Deepak Verma. He has submitted that on the date of occurrence, the revisionist had gone to Delhi alongwith his patient. He has produced the train ticket, chart of the railway, the statement of the patient, who had accompanied along with Dr. A.A.Khan at Delhi. Statement of the patient was recorded and the I.O. found that on the date of occurrence, the revisionist was not present at the place of occurrence and he was falsely implicated, hence, charge-sheet was filed only against Deepak Verma, the co-accused. He further submitted that while issuing the summoning order, the court below has overlooked the material of the charge-sheet collected by the I.O.

5. In support of his submissions, learned counsel for the revisionist has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Anjan Kumar Sarma versus State of Assam; (2017) 14 SCC 359, Brijendra Singh and others versus State of Rajasthan; (2017) 7 SCC 706, Arjun Marik and others versus State of Bihar; 1994 Supp.(2) SCC 372, Hardeep Singh versus State of Punjab;(2014) 3 SCC 92 and one judgment passed by this Court in Application under Section 482 bearing No.6936 of 2019(Ravindra Nath Mishra versus State of U.P. ).

6. In the case of Brijendra Singh (supra), which is a matter pertaining to Section 319 Cr.P.C., the Hon'ble Supreme Court has laid parameter in Para 14 and 15 of the decision. The Supreme Court has observed that the evidence recorded during the trial should be credible for commission of offence. Once the I.O. had collected the plethora of evidence and there is no act of commission of offence found against the person the trial court was at least duty bound to look into the same while forming opinion to summon. The relevant paragraph 14 and 15 are quoted below:

"14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 km. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.

15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the "evidence" recorded during trial was nothing more than the statements which were already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing the agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."

7. Similarly, it has been argued by the counsel for the revisionist that the ratio in case of Arjun Marik (supra) is also applicable to the case in hand and he has relied upon the relevant portion of the said judgment which is quoted below:

"Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."

8. Per contra, learned A.G.A. has submitted that in case of rape, single testimony of prosecutrix is sufficient for conviction. The prosecutrix has specifically mentioned the name of the revisionist, who injected her due to which she became unconscious. She has further stated that she was beaten by Dr. A.A.Khan. Thus, since the evidence is made out against the revisionist and there is direct evidence of the Act of the commission of offence, therefore, revision is liable to be dismissed.

9. The prosecutrix was brought before the court and her statement was recorded under Section 164 Cr.P.C. on 27.02.2012. She stated before the Court that co-accused Deepak made promise to get her employed in the Clinic of Dr.A.A. Khan(revisionist), who will provide her sufficient salary. She has stated that she reached at the clinic of Dr.Khan at 6:00 p.m. on 23.01.2012, where Dr.Khan and co-accused Deepak Verma had beaten her and threatened to kill her. She further mentioned that Deepak Verma committed rape with her in the clinic of Dr. A.A. Khan. She has further stated that when she shouted Dr.Khan injected anesthesia and she was kept in confinement for seven days. The said statement under Section 164 Cr.P.C. clearly indicates the direct evidence against the revisionist. The prosecutrix Km.Aarti was examined before the Court and her statement is quoted below:

"uke & dq0 vkjrh mez & 18 o"kZ iq=h Jh eqUuk] fuoklh & e0uz0&[email protected] dk'khjke dkyksuh] ikjk Fkkuk ikjk] ftyk&y[kuÅ us l'kiFk c;ku fn;k fd &

?kVuk fnukad 23-1-2012 le; 6-00 cts 'kke dh gS] ml fnu eSa Dyhfud ij tkWc djus dbZ FkhA MkW0 'kqHke Dyhfud ij eSa dke djrh Fkh] ogk¡ ij MkW0 ,0,0 [kku o nhid oekZ ogka vkrs FksA nhid oekZ us eq>ls dgk fd rqEgs fdruh ru[okg feyrh gSA eSaus crk;k fd [email protected]& :0 ;gka feyrk gSA og dgus yxk fd vxj rqEgs dke djuk gS rks esjs ;gka dj yks ogka nksxquk iSlk feysxkA ml gkfLiVy dk uke ohul uflZax gkse gSA 23 rkjh[k dks

?kVukokys fnu eSa ohul uflZax gksx tkWc ds fy;s xbZ FkhA ogka ij ohul uflZax gkse dk cM+k lk cksMZ yxk Fkk eSa vUnj pyh xbZ tc eSa ogka ij xbZ rks ogka ij MkW0 ,0,0 [kku o nhid oekZ ekStwn FksA mUgskus dgk fd rqEgs ;gka ij ipkZ cukuk iM+sxk vkSj [email protected]& :0 nsaxs vxj dke djuk gS rks vHkh nhid oekZ ds lkFk tgka vkWijs'ku gksrk gS rks og txg ns[k yks rks eSa nhid oekZ ds lkFk tkdj pyh xbZA tc eSa ogka igqaph rks ogka ij dksbZ ejht ugha Fkk ,dne rg[kkus tSlk FkkA ;g ns[kdj eSaus dgk fd eSa ;gka dke ugha dj ikm¡xh ge tk jgs gSaA mlds ckn nhid oekZ us eq>s ,d rekpk ekjk vkSj dgus yxk fd rqEgs dgha tkus dh t:jr ugha gS rqe ;gha jgksxhA eSaus fpYykus dh dksf'k'k dh rks MkW0 [kku Hkh ogka vk x;sA mlds ckn MkW0 [kku o nhid oekZ us eq>s cgqr ekjk&ihVk MkW0 [kku us fjokYoj fudkydj /kedh nh fd vxj ;gka ls Hkkxus dh dksf'k'k djksxh rks rqEgs tku ls ekj nsxsaA mlds ckn nhid oekZ o MkW0 [kku us eq>s cka/k fn;k esjk eq¡g nck;k vkSj dgus yxs fd pqi&pki jgs ;gka ls tkus ugha nsxsA fQj MkW0 [kku ogka ls pys x;s vkSj vkil eas ckgj yM+kbZ djus yxs fd igys eSa xyr dke d:axk nksuks vius&vius dks igys xyr dke djus ds fy;s yM+kbZ djus yxsA fQj FkksM+h nsj esa vk;s vkSj MkW0 [kku us eq>s fdlh pht dh lqbZ yxk nh vkSj oks ogka ls pys x;sA nhid oekZ us esjs lkFk xyr dke fd;kA vius is'kkc dh txg esjh is'kkc dh txg esa MkyhA mlds ckn eq>s tc gks'k vk;k rks eSa ,d xkao esa FkhA ml xkao dk uke ugha irkA ogka ij nhid oekZ gh FkkA nhid oekZ us uflZax gkse esa 7 fnu xyr dke fd;k Fkk vkSj xkao esa Hkh 6&7 fnu xyr dke fd;k FkkA mlus gekjh oh0Mh0vks0 Hkh eksckby ls xkao esa cukbZ FkhA iqfyl us eq>s cq)s'oj pkSjkgs ls fnukad 9 rkjh[k nwljk eghuk lu~ 2012 dks cjken fd;k FkkA ml le; esjs lkFk nhid Hkh Fkk ftls fxj¶rkj fd;k x;k FkkA esjh MkDVjh cjkenxh ds fnu gh gqbZ FkhA MkDVjh djkus esjs lkFk eEeh vkSj efgyk iqfyl xbZ FkhA MkW0 us ogka esjk fu'kkuh vaxwBk yxok;k FkkA mlds ckn nwljs fnu Fkkus ls eq>s esjh eEeh ds lkFk Hkst fn;k FkkA eSa bl le; ch0ch0,0 dj jgh gw¡A ?kVuk ds oDr eSa b.Vj QLVZ b;j esa eksrh yky usg: eseksfj;y xYlZ b.Vj dkWyst esa i<+rh FkhA esjh tUefrfFk 22-09-94 gSA eSaus gkbZLdwy Hkh blh Ldwy ls fd;k FkkA eftLVªsV lkgc ds lkeus esjk c;ku gqvk FkkA vfHk;qDr nhid oekZ us esjs lkFk tks xyr dke fd;k Fkk og esjh bPNk dsa fo:) fd;k FkkA og /kedh nsrk Fkk fd fojks/k djksxh rks rqEgkjs ?kj okyksa dks ekj Mkywxka vkSj fofM;ks fn[kkus dh Hkh /kedh nsrk FkkA xokg dks 164 n0iz0la0 dk c;ku i<+dj lquk;k x;k rks xokg us dgk fd ;g c;ku eftLVªsV lkgc dks fn;k Fkk ftl ij esjs gLrk{kj gSA njksxk th us eq>ls iwaN&rkN fd;k FkkA ;gh ckrsa eSaus njksxk th dks crkbZ FkhA"

10. On perusal of the statement made by prosecutrix before court, it is amply clear that there is complicity of the offence found against the accused-revisionist. He had injected anesthesia on the body of prosecutrix and he also gagged her mouth and threatened her. It is thus clear that the statement of the prosecutrix is very clear, which is direct evidence against the revisionist and there is no iota of doubt regarding the offence committed by the revisionist.

11. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under :-

"A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

12. In State of U.P. Vs. Pappu @Yunus & Anr. AIR 2005 SC 1248, this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under :-

"It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do."

13. In State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, this Court held 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. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under :-

"The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix?

The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix...............The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. 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 replying 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.

** ** ** **

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."

14. In State of Orissa Vs. Thakara Besra & Anr. AIR 2002 SC 1963, this Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

15. In State of Himachal Pradesh Vs. Raghubir Singh (1993) 2 SCC 622, this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.

16. A similar view has been reiterated by this Court in Wahid Khan Vs. State of Madhya Pradesh (2010) 2 SCC 9, placing reliance on earlier judgment in Rameshwar Vs. State of Rajasthan AIR 1952 SC 54.

17. In another case the Supreme Court in Phool Singh Vs. The State of Madhya Pradesh [Criminal Appeal No. 1520 of 2021, decided on 01.12.2021], has taken the similar view in respect of the sole testimony of the prosecutrix, which follows as under:

"5.1 At the outset, it is required to be noted that in the present case, the prosecutrix has fully supported the case of the prosecution. She has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination, she has stood by what she has stated and has fully supported the case of the prosecution. We see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. The submission on behalf of the accused that no other independent witnesses have been examined and/or supported the case of the prosecution and the conviction on the basis of the sole testimony of the prosecutrix cannot be sustained is concerned, the aforesaid has no substance."

18. So far the other arguments advanced by learned counsel for the revisionist that the material of the charge-sheet should be taken into consideration, does not conspire confidence. In my opinion, the statement of prosecutrix against the accused-revisionist is clear and there is no iota of doubt. The order passed by the Court below needs no interference and there is no need to discuss the other material filed by the I.O. while filing the report before the court below. The plea of alibi will be subject to further evidence and at this moment, I cannot infer that the revisionist was absent and he had gone to Delhi because the evidences to that effect are subject to further examination before the trial court. It is also a settled law that in case of heinous crime like rape, a single testimony of the prosecutrix is sufficient for conviction.

19. In such circumstances, the impugned order dated 03.07.2013 does not suffer from any illegality or infirmity and is based upon relevant considerations and supported by cogent reasons,hence requires no interference by this Court. The revision is accordingly dismissed. However, it is made clear that the court below will not be influenced with any observations made by this Court.

20. Office is directed to communicate this order to the court below for necessary compliance, forthwith.

Order Date :- 26.04.2022

Arun K. Singh/Akanksha

(Brij Raj Singh, J.)