Ram Vriksha Kushwaha vs State Of U.P.
2022 Latest Caselaw 11615 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								Reserved on 18.8.2022
 
								Delivered on 30.8.2022
 
Court No. - 66
 
Case :- CRIMINAL APPEAL No. - 2352 of 2019
 
Appellant :- Ram Vriksha Kushwaha
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sahai Kant Kushwaha,Narendra Kumar,Pawnesh Tiwari,Shashank Singh,Sunil Kumar Kushwaha
 
Counsel for Respondent :- G.A.
 
Hon'ble Samit Gopal,J.

1. Heard Sri Narendra Kumar, learned counsel for the appellant, Sri Ankit Srivastava, learned counsel for the State of U.P. and perused the records.

2. Name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgements and Section 228 of the Indian Penal Code. She is, thus, referred to as ''X' in the judgement.

3. The present appeal has been filed by the appellant Ram Vriksha Kushwaha challenging the impugned judgement and order dated 26.5.2018 passed by the Additional Sessions Judge, Court No. 1, Sonbhadra in Special Session Trial No. 82 of 2013, State vs. Ram Vriksha Kushwaha, by which he has been convicted and sentenced under Sections 376/511 I.P.C. to eight years rigorous imprisonment and Rs.20,000/- as fine and in default of payment of fine to one year additional rigorous imprisonment, under Section 4 Protection of Children from Sexual Offences Act, 2012 to twelve years rigorous imprisonment, Rs.25,000/- as fine and in default of payment of fine to 15 months additional rigorous imprisonment. The trial court has further ordered that Rs.30,000/- shall be paid to the victim as compensation under Section 357 Cr.P.C. It has been ordered that except for fine, sentences shall run concurrently and extended the benefit of set off under Section 428 Cr.P.C.

4. The prosecution case as per an application dated 29.12.2012 given at Police Station Kotwali Duddhi, District Sonbhadra by Brij Kumar, is that he is a poor person and a labour. The incident is of 28.12.2012 at about 11.00 am. His two daughters victim ''X' and Shalini had gone to ease themselves and were later on picking wood. Ramvriksh son of Nakchhedi resident of village Bidar, police station Kotwali Duddhi, District Sonbhadra was going for grazing his cows, bullocks and goats. He picked up his daughter victim ''X' in his lap and took her to nearby bushes and threw her on the ground. He tied her mouth with gamcha and while biting her cheeks committed rape upon her due to which dress and sweater of his daughter became blood stained. At the time of rape his daughter shouted and cried on which Manager, Santara and his mother with many other people reached the place of occurrence. When the people asked the accused about it then he said that they should not interfere much as they do not know he is a person of knowing occult science and incinerate everyone. They cannot do anything to him. They can do whatever they want. On the day of incident the applicant had gone to do his labour work and his wife had gone to her maika in Garhwa. When both of them reached back to home at about 8.00 p.m. on 29.12.2012 then his daughter-victim ''X' aged about 7 years started crying and told them about the incident and the people of nearby also told them of the incident. He prays that the statement of his daughter be recorded, the accused be arrested, be awarded life sentence which is necessary and important as per law. He further requests that his report be immediately lodged and the rapist be arrested. The said application is Exb. Ka-1 to the records.

5. On the basis of the said application a First Information Report was lodged on 30.12.2012 at 00.10 hours as Case Crime No. 562 of 2012, under Section 376 I.P.C., Police Station Kotwali Duddhi, District Sonbhadra, against Ramvriksha. The chik F.I.R. is Exb. Ka-6 to the records.

6. Sweater, shirt, underwear and skirt of the victim ''X' were taken in custody by the police on 30.12.2012. A recovery memo of the same was prepared which is Exb. Ka-2 to the records.

7. The victim ''X' was medically examined by Dr. Kaushal Kumar Pandey on 31.12.2012 at 12.30p.m. while being brought by police constable. The doctor noted the following injury on her person :

"(1) Abrasion 1cm X 0.2cm on top of nose. 1cm below left eyebrow.

(2) Abraded contusion 3cm X 1cm on back of chest. 10cm below right scapula."

Opinion of the doctor was as follows:

"Above injuries caused by hard and blunt object. Simple in nature. Duration 4 days old."

The said injury report is Exb. Ka-8 to the records.

8. The victim ''X' was further medically examined by Dr. Mrs. Anita on 31.12.2012 at 11.20 a.m. at District Joint Hospital, Sonbhadra while being brought by police constable. The doctor on her examination of private parts states that there was no mark of injury seen. Hymen intact. No perineal tear seen. No foul smell, discharge found. Her vaginal smear was prepared and sent to pathologist for detection of spermatozoa. She was advised X-ray for determination of her age. The said medical examination report is Exb. Ka-9 to the records.

9. X-ray examination was done on victim ''X' and the doctor reported as follows:

"Six carpal bones ossified. Aged about six years."

The said X-ray report is Exb. Ka-10 to the records.

10. A supplementary report was prepared by Dr. Anita on 1.1.2013 stating therein that no spermatozoa was seen in the smear and giving further opinion that no evidence of rape seen. She has not been raped. The said supplementary report is Exb. Ka-11 to the records.

11. At this stage, it would be relevant to point out that the medical examination report dated 31.12.2012 Exb. Ka-9, the supplementary report dated 1.1.2013 Exb. Ka-11 were prepared by Dr. Anita and X-ray report dated 31.12.2012 of the Radiologist is Exb. Ka-10 to the records. The genuineness of said three documents were admitted by learned counsel for the defence and as such formal proof was dispensed with.

12. The statement of victim ''X' was recorded under Section 164 Cr.P.C. on 1.1.2013 which is Exb. Ka-3 to the records.

13. Shirt, skirt, underwear and sweater of the victim ''X' were sent to Forensic Lab for its analysis. The Forensic Lab vide its report dated 21.3.2013/16.4.2013 stated that shirt was marked as article-1, skirt was marked as article-2, underwear was marked as article-3 and sweater was marked as article-4 before it. The result of examination was that article (1) was found to contain blood stain on it. The same were found to be of human origin. Article (2) and (4) were not found to contain blood on them. Article (3) was found to contain spermatozoa on it. The same was of human source. It lastly opined that Article (1), (2) and (4) were not found to contain spermatozoa. The said report is Exb. Ka-5 to the records.

14. The investigation concluded and a charge sheet no. 03 of 2013, dated 6.2.2013 was filed against the accused Ramvriksha, under Sections 376, 511, 504, 506 I.P.C. and Section 3(B)/4 Prevention of Children from Sexual Offence Act, 2012. The same is Exb. Ka-4 to the records.

15. Vide order dated 27.9.2013 passed by the Sessions Judge, Sonbhadra, charge was framed against the accused-appellant under Sections 376 and 511 I.P.C., 504 I.P.C., 506 I.P.C. and Section 4 Protection of Children from Sexual Offences Act, 2012.

The accused denied the charges and claimed to be tried.

16. Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. It is argued that the medical evidence being medical examination report of the victim ''X' which was conducted by Dr. Anita does not show that there was any sexual assault on the victim. He argued that even supplementary report is specific in its terms with regards to the fact that there was no rape committed on her. Doctor has stated that no evidence of rape is seen. It is argued that since there was enmity between the appellant and the family members of the first informant, he has been falsely implicated in the present case without any legal and credible evidence. The appellant is in jail since 13.12.2012. It is argued that as such there is no evidence whatsoever to show that there was any sexual assault on the victim ''X'. The prosecution has not proved its case beyond reasonable doubt and therefore, the impugned judgement and order deserves to be set aside and the accused-appellant deserves to be acquitted.

17. Per contra, learned State counsel while replying to the arguments of learned counsel for the appellant, argued that the appellant is named in the F.I.R. The victim ''X' was aged about 6 years as per report of Radiologist. It is argued that the age of the victim has not been disputed by the defence as is evident from the cross-examination and also from the fact that genuineness of the report of Radiologist along with supplementary report have been admitted. It is argued that in so far as attempt to commit rape is concerned, the same gets corroborated from the report of chemical analyst which is Exb. Ka-5 to the records, in which in the shirt of the victim ''X' human blood was found and in the underwear of the victim ''X' spermatozoa were found which were of human origin. The same leaves no doubt that there was an attempt of sexual assault upon the victim. There were blood present and even human spermatozoa were found on her clothes. It is argued that the prosecution has proved the case beyond reasonable doubt and thus, the appeal deserves to be dismissed.

18. The prosecution in order to prove its case produced and examined Brij Kumar the first informant as P.W.-1, the victim ''X' as P.W.-2, Smt. Priyanka Devi as P.W.-3, Smt. Santara Devi as P.W.-4, Sub Inspector Sarvesh Kumar Singh as P.W.-5 and Dr. Kaushal Kumar Pandey as P.W.-6.

19. The accused appellant in his statement under Section 313 Cr.P.C. denied the accusation levelled against him. He stated that he had a fight with the family of the first informant due to which he has been falsely implicated in the present case. He did not lead any defence evidence.

20. The trial court after considering the entire evidence on record came to a conclusion that the case against the accused has been proved beyond reasonable doubt and hence convicted him as aforesaid.

21. P.W.-1 Brij Kumar is the first informant of the present case. He states that on the date of incident he had gone to do work as a labour and his wife Smt. Radhika Devi had gone to her maternal house with regards to fixation of marriage of her younger sister. The victim ''X' aged about 7 years, Shalini aged about 6 years were present in the house. On 29.12.2012 at about 8.00p.m. he came to his house and then came to know of the incident through his sister-in-law who told him that Ramvriksha has raped her after taking her to bushes in the field of Babu Khan. His other daughter had also told his sister-in-law in law about the incident which she had seen, after which she went to the place of incident where she was threatened that she would also meet the same fate and would be punished. On hearing hue and cry, his brother Manager, his wife Smt. Santara Devi reached the place of occurrence. They also told him about the incident. He then got an application written about the incident on the basis of which a First Information Report has been lodged. He identifies his thumb impression on the said application. He states that he had given clothes to the Investigating Officer which were of his daughter which she was wearing at the time of incident of which a recovery memo was prepared and he also signed on it. He proves the recovery memo. His statement was recorded by the Investigating Officer.

22. P.W.-2 the victim ''X' reiterates the version as per the F.I.R. She further reiterates the version given by the first informant. She states that her statement under Section 164 Cr.P.C. was recorded. She proves the same.

23. P.W.-3 Smt. Priyanka Devi is maternal aunt of the victim ''X'. She states of having gone to the house of the first informant 2-3 days before the occurrence. She states of her reaching the place of occurrence after being informed by Shalini, the sister of victim ''X'. She states that she on information reached there and other persons also reached there. She states of the accused lying on top of the victim ''X' and on seeing them he became agitated. He was challenged by Smt. Santara Devi, he then said that he is knowing occult science and will use it on them. Time was around 11.00-11.30 a.m. She then took the victim ''X' with her and took her underwear which was blood stained and brought her back. Her sister came on the next date. She then told her sister and brother-in-law about the incident. She states that she does not know the name of the accused but can identify him.

24. P.W.-4 Smt. Santara Devi is the wife of Manager who is brother of the first informant. She states of being an eye witness of the incident and states of the incident as stated by P.W.-3 and the victim ''X'.

25. Inspector Sarvesh Kumar Singh P.W.-5 is the Investigating Officer of the matter. He took up investigation and then concluded it by filing charge sheet. He proves the report of Forensic Lab.

26. P.W.-6 Dr. Kaushal Kumar Pandey was on emergency duty in District Hospital, Sonbhadra on 31.12.2012. He states of examining the victim ''X' at 12.30 p.m. and proves the medical examination report which is Exb. Ka-8 to the records.

27. After having heard learned counsels for the parties and perusing the records, it is evident that the victim as per the First Information Report, is aged about 7 years and as per report of Radiologist is aged about 6 years. She is a child. She knows the accused appellant as he is of the same village. The clothes of the victim at the time of being taken into custody by the police, were found to be blood stained. The report of chemical analyst finds human blood on her shirt and human spermatozoa on her underwear. The victim was further found to have received two injuries on her body. The evidence of no injury in the medical examination on her private part, would not make any differences to the prosecution case as the very nature of the evidence of sexual assault as per the Protection of Children from Sexual Offences Act, 2012 is made out even on touching private parts with sexual intent.

28. In the present case the version of the victim ''X' P.W.-2, Smt. Priyanka Devi P.W.-3 and Smt. Santara Devi P.W.-4 who are eye witnesses, does not get distorted and inspires confidence. There is no reason to doubt the said version. The defence as taken by the accused-appellant is without any basis. There is no circumstance brought on record by the defence to show that there was any quarrel between the accused and the family of the first informant which could have been the reason for his false implication as stated by him.

29. Thus, considering all the aspects of the matter no case for interference is made out. The impugned judgement and order is a just and proper judgement and order of conviction. The prosecution has proved its case beyond reasonable doubt. The judgement and order is affirmed. The appeal is dismissed.

30. The appellant is in jail. He shall remain in jail to serve out the sentences as awarded to him.

31. Office is directed to transmit the lower court records along with the lower court records to the court below forthwith for its compliance and necessary action.

(Samit Gopal,J.)

Order Date :-30.8.2022/Naresh