Chandrai @ Chandradhari vs State Of U.P.
2022 Latest Caselaw 668 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 89
 

 
Case :- CRIMINAL APPEAL No. - 5297 of 2021
 

 
Appellant :- Chandrai @ Chandradhari
 
Respondent :- State of U.P.
 
Counsel for Appellant :- J.A. Azmi
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Anil Kumar Ojha,J.

Case is taken up in the revised list.

Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

Learned counsel for the appellant submitted that appellant is not in his contact and he cannot argue the appeal.

As learned counsel for the appellant is not ready to argue the appeal, there is no option left but to appoint learned Amicus Curiae in the matter.

Accordingly, Sri Krishna Mohan Tiwari, Advocate is nominated as Amicus Curiae. He prays to argue the matter after lunch.

Put up this case today i.e. on 07.04.2022 at 2:00 P.M.

Order Date :- 7.4.2022

A. Mandhani

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A.F.R.

Case :- CRIMINAL APPEAL No. - 5297 of 2021

Appellant :- Chandrai @ Chandradhari

Respondent :- State of U.P.

Counsel for Appellant :- J.A. Azmi

Counsel for Respondent :- A.G.A.

Hon'ble Anil Kumar Ojha,J.

Heard Sri Krishna Manohar Tiwari, learned Amicus Curiae for the appellant, Sri Ravi Prakash Pandey and Sri Ram Vichar Chaudhary, learned A.G.A. for the State and perused the record.

Challenge in this Criminal Appeal is the judgement and order dated 07.03.1998 passed by Sessions Judge, Azamgarh in Sessions Trial No. 722 of 1997, State Vs. [email protected] arising out of Crime No. 249 of 1997 under Section 376 I.P.C., P.S. Kandharapur, District, Azamgarh whereby learned Sessions Judge, Azamgarh has convicted the appellant, [email protected] under Section 376 I.P.C. and sentenced him to undergo Rigorous Imprisonment for a period of ten years and pay a fine of Rs. 2,000/- and in default of payment of fine, to suffer six months further Rigorous Imprisonment.

Shorn of unnecessary details, case of prosecution is that an F.I.R. was lodged by complainant, Subai on 25.09.1997 at 16:00 hours in P.S., Kandharapur, District, Azamgarh stating therein that on 20.09.1997 at about 4:00 P.M., appellant, [email protected] forcibly committed rape upon victim at the point of knife. Complainant filed a written report at the police station. Case was registered against accused, [email protected] at P.S., Kandharapur, District Azamgarh in Crime No. 249 of 1997 under Section 376 I.P.C.

Investigating Officer started investigation and prepared site-plan of the spot; he produced the victim before concerned Magistrate for recording of her statement under Section 164 Cr.P.C. Victim's statement under Section 164 Cr.P.C. was recorded; she was medically examined. After recording of statement of witnesses and conclusion of investigation, I.O. submitted charge-sheet against the appellant, [email protected] in Crime No. 249 of 1997 under Section 376 I.P.C., P.S. Kandharapur, District Azamgarh.

The then Additional Civil Judge, Junior Division/Judicial Magistrate First Class, Azamgarh on 19.12.1997 committed the case of appellant to Sessions Court for trial.

Learned Sessions Judge framed charge against the appellant, [email protected] under Section 376 I.P.C. Appellant denied the charges and claimed trial.

Prosecution was called upon to adduce the evidence to substantiate the prosecution version. Prosecution produced Subai who lodged the F.I.R. as P.W. 1. He is the complainant/informant of the case. P.W. 1, Subai has supported the prosecution story in his evidence before the Court P.W. 1 proved F.I.R., Ex. Ka-1.

P.W. 2 is the victim herself. She has supported the prosecution version and has specifically stated that appellant, [email protected] has committed rape upon her.

P.W. 3, Narmi is the mother of victim. She has also supported the prosecution story.

P.W. 4, Amarjeet Singh is S.O., Kandharapur. He has conducted the investigation and proved the charge-sheet, Ex. Ka-3. P.W.-5, Rajan Yadav is a Court Moharrir who has proved the Chick F.I.R., Ex. Ka-4. P.W. 6, Dr. Sumati Saxena conducted the medical examination of the victim and proved medical examination report as Exhibit Ka-6, Pathological Report Ex. Ka-7, Radiological Report Ex. Ka-8. P.W. 6, Dr. Sumati Saxena opined that victim has been subjected to sexual intercourse.

P.W. 7, Dr. S.P. Singh proved the Supplementary-Report as Material Exhibit-1. P.W. 7 has stated in his statement before the Court that as per the Radiological Examination, age of the victim is found to be more than 16 years and less than 18 years and proved X-ray Report, Ex. Ka-9, X-ray plate, Material Ex.-1.

Prosecution concluded its evidence; statement of appellant under Section 313 Cr.P.C. was recorded. Appellant denied the evidence and also denied commission of rape and stated his ignorance. He specifically stated that he was a poor labourer and used to do labour work with Shivnath Yadav. He has three sisters and nine brothers.

After hearing the prosecution and defence, learned Sessions Judge, Azamgarh convicted the appellant as above.

Feeling aggrieved and dissatisfied with the aforesaid judgement, appellant has preferred this appeal.

Submission of learned Amicus Curiae for the appellant is that there is five days' delay in the lodgement of F.I.R. Evidence of victim is unworthy of credence; Investigating Officer had not collected the cloth; victim has gone for grass-cutting; she was having weapon, hence she should have inflicted injury upon the appellant. Prosecution story is doubtful. Appellant deserves benefit of doubt.

Per-contra, learned A.G.A. vehemently opposed the aforesaid arguments and submitted that victim is a labour class rustic lady. There is no material contradiction in her statement. Evidence of victim is supported by medical evidence. Mere delay in lodging the F.I.R. will not make the prosecution story suspicious. Appellant committed rape upon the victim at the point of knife. Appeal lacks merit and deserves dismissal.

In State of Punjab Vs. Hakam Singh (2005) 7 SCC 408, Hon'ble Apex Court has held that it is not expected of a rustic lady to state with precision the chain of events. In case of rustic lady, Court should keep in mind her rural background and scenario in which the incident happened and should not appreciate her evidence from rational angle and discredit her otherwise truthful version on technical grounds.

It is a case of rape where testimony of prosecutrix stands at par with that of injured witness. Law on the point of evidence of rape victim, is clearly settled.

In Raja and others v. State of Karnataka (2016) 10 SCC 506, Hon'ble Apex Court has held as follows:

"..........It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.

The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non- consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."

Thus Law on the point is that the testimony of the victim must be appreciated in the background of the entire case and 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 victim, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.

In view of above settled legal position, the evidence of PW2 victim is being analyzed and evaluated.

P.W. 2, victim in her examination-in-chief in Court has specifically stated that on the date of incident, she had gone for grass-cutting in the field of Shiv Nath Pasi. It was 4 O' Clock in the evening. Appellant, [email protected] came there and caught hold her hand. He brought the victim at the bricklin of Baram Dev Ram and put a knife at her breast, she cried to save her. Thereafter, he committed rape upon her; she became unconscious. When she regained consciousness, she went to her home and told the incident to her mother. She again specifically stated that her age is 13 years. Appellant forcibly committed rape upon her at the point of knife.

She was cross-examined by defence counsel but could not shake the credibility of victim. She specifically tendered evidence at page 18 of the paper book. That she tried to save herself. Her cloth became stained. Police did not took her cloth.

Evidence of victim is natural and probable. There is no major contradiction in her statement.

In view of the above, submission of learned Amicus Curiae is that evidence of victim is unworthy of credence has no legs to stand and is rejected accordingly.

P.W. 6, Dr. Sumati Saxena has proved the medical examination report. She has stated in her examination-in-chief at page no. 31 of the paper book that on the basis of medical-examination, she is of the opinion that victim was subjected to sexual intercourse. There was injury on her hymen. In the cross-examination, she has also specifically stated that victim was not habitual to sexual intercourse.

Thus from the evidence of P.W. 2, victim and P.W. 6, Dr. Sumati Saxena, it is manifest that appellant committed forcible sexual intercourse. As doctor has opined that victim was subjected to sexual intercourse and there was injury on her hymen, so evidence of victim is supported by medical evidence of P.W. 6. In the injury report itself, the doctor has opined that linear tear seen on posterolateral side of hymen.

It is accordingly held that evidence of victim is supported by medical testimony.

Learned Amicus Curiae for the appellant submitted that there is five days' unexplained delay in lodgement of F.I.R., hence prosecution story is doubtful. I am unable to accept this contention of learned Amicus Curiae because victim, her father and relatives are illiterate persons belonging to labour class. Promptness in lodgement of F.I.R. cannot be expected from them. Moreover matter pertains to rape wherein parties normally immediately don't rush to police station to save their social prestige.

In view of the above, contention of learned Amicus Curiae with regard to delay in lodgement of F.I.R. is rejected.

Learned Amicus Curiae eloquently argued that victim has gone for grass-cutting. She was having weapon so she should have inflicted injury upon appellant. There is no sign of resistance by the victim. I am unable to agree with the aforesaid contention because victim is a rustic village lady. Appellant committed rape at the point of knife, so this contention of learned Amicus Curiae is also unsustainable and is rejected.

The upshot of the above discussion is that the prosecution has established its case beyond reasonable doubt against the appellant, [email protected]

The impugned judgment and order passed by lower court is within four corners of law. There is no illegality in the judgment and order dated 07.03.1998 passed by Sessions Judge, Azamgarh in Sessions Trial No. 722 of 1997, State Vs. [email protected] arising out of Crime No. 249 of 1997 under Section 376 I.P.C., P.S. Kandharapur, District, Azamgarh whereby learned Sessions Judge, Azamgarh has convicted the appellant, [email protected] under Section 376 I.P.C. and sentenced him to undergo Rigorous Imprisonment for a period of ten years and pay a fine of Rs. 2,000/- and in default of payment of fine, to suffer six months further Rigorous Imprisonment and the same is hereby confirmed. Appeal lacks merit and is liable to be dismissed.

Accordingly, this appeal is dismissed.

The assistance rendered by Sri Krishna Manohar Tiwari, learned Amicus Curiae for the appellant is appreciable and his fee is assessed Rs. 10,000/-.

Registry of this Court is directed to pay Rs. 10,000/- to Sri Krishna Manohar Tiwari, learned Amicus Curiae for the appellant for his assistance.

Copy of this judgment be certified to the court below for compliance. Lower court record be transmitted to the District Court concerned forthwith.

Order Date :- 7.4.2022

A. Mandhani