Dileep Khatik vs State Of U.P.
2022 Latest Caselaw 11628 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

				                                  Reserved on 27.7.2022
 
				                                           Delivered on 30.8.2022 
 
Court No. - 91
 
Case :- CRIMINAL APPEAL No. - 44 of 2001
 
Appellant :- Dileep Khatik
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Hasan Ahmad
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Samit Gopal,J.

1. Heard Sri Kamlesh Tiwari, learned counsel for the appellant, Sri J.P. Tripathi and Sri Gyan Prakash Singh, learned counsel for the State of U.P. and perused the material on records.

2. Learned counsel for the appellant states that since the matter is being argued finally, the Criminal Misc. Bail Application No. 2 of 2022, dated 11.4.2022, be dismissed as not pressed.

3. As prayed by learned counsel for the appellant, said criminal misc. bail application is dismissed as not pressed.

4. 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.

5. By means of this Criminal Appeal under Section 374(2) Cr.P.C. the appellant has challenged the impugned judgement and order dated 7.12.2000 passed by XII Additional District and Sessions Judge, Allahabad, in Session Trial No. 84 of 1994 in Case Crime No. 373 of 1987 (State vs. Dileep Khatik), by which he has been convicted and sentenced under Section 376 I.P.C. for ten years rigorous imprisonment and a fine of Rs.5000/- and in default of payment of fine to 1 year rigorous imprisonment.

6. The prosecution case as per the First Information Report dated 5.9.1987 on the basis of oral version given by the victim ''X', is that she is wife of Jumman Khan, resident of Mohalla 229 Lookerganj, Chakiya More, Allahabad. On 5.9.1987 she had taken her medicine and was sleeping. At about 12.30 hours Dileep Khatik son of Badri Khatik resident of Mohalla Karbala, came inside the house and closed the door. He showed her a knife and forcibly took out her ''Payjama' and raped her. She tried to raise a shout but he pressed her neck and said that if she tells it then he would assault her with knife. After raping her, he opened the door and ran away. He was seen by many persons while running away. She was crying and when her husband came back she told him about the incident and has come with him to the police station. The oral information as given by her, was transcribed and her thumb impression was got affixed. The same is Exb. Ka-1 to the records.

On the basis of said oral report a First Information Report was lodged as Case Crime No. 273 of 1987, under Section 376 I.P.C., Police Station Khuldabad, District Allahabad on 5.9.1987 at about 13.30 hours against Dileep Khatik. The chik F.I.R. is Exb. Ka-3 to the records.

7. The victim ''X' was medically examined by Dr. Aruna Singh on 5.9.1987 at about 4.20 p.m. The doctor noted therein as follows:

"There are no marks of injury over private parts. Vagina admits two fingers easily. Vaginal smear taken. Send for pathology report. Girl sent for X-ray examination. Final medico legal report will be given after pathology and X-ray report. Girl referred to Colvin Hospital for ext. injury over throat."

The said report is Exb. Ka.-5 to the records.

The vaginal smear report did not find any sperm present. On the basis of X-ray report the victim ''X' was found to be aged above 18 years and the conclusion of the doctor was that no definite opinion about rape can be given. The girl is used to sexual intercourse. The said report is Exb. Ka-6 to the records.

8. The victim ''X' was then medically examined by Dr. A.K. Singhal, Medical Officer, M.L.N. Hospital, Allahabad on 5.9.1987 at 5.20 p.m. being brought by Constable Rukhsana Begum and the doctor found the following injuries on her person :-

(1) Contusion 2cm X 1cm over left side of face and lower eye lid, reddish in colour with sub conjunctival haemorrhage over medial side of bulbe conjunctiva reddish in colour.

(2) Contusion 3cm X 2cm over left side of neck upper part lateral to the angle of mandible, reddish in colour.

The opinion given is as follows :-

" Injuries are simple, fresh, caused by blunt object. (Patient referred for Duffrin Hospital for medico legal examination of ext. injury over throat)."

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

9. The investigation concluded and a charge sheet dated 18.9.1987 was filed against the accused Dileep Khatik, under Section 376 I.P.C. The same is Exb. Ka-10 to the records.

10. Vide order dated 5.4.1994 passed by the VI Additional Sessions Judge, Allahabad, charge was framed under Section 376 I.P.C. against the accused-appellant.

The accused denied the charge and claimed to be tried.

11. Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. It is argued that there is no eye witness to the incident. The first marriage of the victim ''X' was solemnized at the age of 10 years. She has one son. Then her second marriage has been solemnized with Jumman Khan, after taking talaq from her first husband. It is further argued that the victim ''X' has improved her version as stated in her oral report by stating that her bangles got broken at the time of incident but there is no recovery of any such bangles from the place of occurrence. It is argued that the medical examination does not corroborate with the story of rape as the doctor has opined in the supplementary medical report that no definite opinion about rape can be given and the girl is used to sexual intercourse. It is further argued that as per medical evidence being the supplementary medical report, the victim ''X' was opined to be above 18 years of age and as such she was major at the time of incident. There is no injury present on the body of the victim ''X' regarding the allegation of pressing of neck and as such the said story also gets falsified. The accused has taken up a case of denial and false implication as there was some suspicion of the victim ''X' being involved with the accused and as such on the saying of the persons of area and also of her husband, a false report has been lodged against him. It is argued that looking to the same the present appeal deserves to be allowed and the impugned judgement and order of conviction deserved to be set aside.

12. 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' has categorically stated of the appellant committing rape upon her by extending threat with a knife. She has in her oral report stated of the accused pressing her neck while she was making an attempt to raise a shout. The medical examination report which is Ex. Ka.- 8 to the records, corroborates the version of assault by the accused on the victim ''X' as the doctor has found two contusions on her body amongst which one of the contusions is on the left side of face and the other is on the left side of neck upper part which would corroborate with the prosecution story. It is argued that since the victim ''X' was a married woman, opinion regarding the fact that he was used to sexual intercourse would not, in any manner, dilute the prosecution case. It is argued that the prosecution evidence is consistent and intact in so far as the implication of the applicant and the occurrence is concerned. The prosecution has succeeded in proving the case against the appellant beyond reasonable doubt and hence, the present appeal deserves to be dismissed.

13. In the trial Victim ''X' was examined as P.W.-1, Jumman Khan who is the husband of the victim ''X', was examined as P.W.-2, Lallan Singh was examined as P.W.-3 who transcribed the Chik F.I.R., Dr. Aruna Singh was examined as P.W.-4 who medically examined the victim ''X' and gave a supplementary report, Dr. S.C. Srivastava was examined as P.W.-5 who is a radiologist and Ram Karan Yadav was examined as P.W.-5 who is the Investigating Officer of the matter and submitted charge sheet against the appellant.

14. The accused appellant in his statement under Section 313 Cr.P.C. denied the accusation levelled against him and stated that Jumman Khan the husband of the victim ''X' on the saying of the persons of Mohalla regarding suspicion, had beaten the victim ''X' and had lodged a false First Information Report against him. No defence evidence was produced.

15. The trial court after considering the entire evidence on record and considering the same, came to a conclusion that the case against the accused has been proved beyond reasonable doubt and convicted and sentenced the accused as stated herein above.

16. In the trial the victim ''X' was examined as P.W.-1. She reiterates the version given by her to the police orally on the basis of which the First Information Report has been lodged. She further proves the First Information Report. She states that her medical examination report was conducted in the hospital but does not remember as to in which hospital it was conducted. She also states of the police taking her ''Payjama' and ''Salwar' in possession. She states that her statement was recorded by the Investigating Officer. She identifies the accused who was present in the court.

17. Jumman Khan the husband of the victim ''X' was examined as P.W.-2. He states that he was married to ''X'. ''X' was living with him. On the day of incident he had gone to the house of Bangali for giving massage in the morning. When he came back at about 1.00 p.m. then his wife was weeping. She in that state told him about the incident, after which he took her and went to the police station. She was hesitant of going to the police station by stating that the accused has threatened her, on which he states that if she does not get a report lodged he would left her. He gave 1-2 slaps to her and then took her to the police station where she told about the incident to Inspector present where her report was lodged. She was then taken for medical examination along with police personnels. His statement was recorded by the Investigating Officer.

18. Lallan Singh Head Constable was examined as P.W.-3 who states that on the oral version of the victim ''X' the F.I.R. was lodged. He proves G.D. etnry regarding the same. He further states that the cloths of the victim ''X' were taken by Constable Rukhsana Begum for which a recovery memo was prepared.

19. Dr. Aruna Singh was examined as P.W.-4 who conducted the medical examination of the victim ''X' and gave a supplementary medical report. The details of the same have already been given herein above.

20. Dr. S.C. Srivastava who was examined as P.W.-5, is a radiologist, who states about X-ray being done and report being given with regard to the victim ''X'. He further states that age of the victim would be above 18 years. He further proves the medical examination report Exb. Ka-8 which was written by Dr. A.K. Singhal.

21. Ram Karan Yadav was examined as P.W.-6 who is Investigating Officer of the case. He states of the cloths of the victim ''X' to be taken into possession and also of conducting investigation, after which he filed a charge sheet against the accused-appellant.

22. After having heard learned counsels for the parties and perusing the records, it is evident that the appellant is named in the F.I.R. which is an oral report by the victim ''X'. He has been assigned the role of committing rape upon the victim. The medical examination of the victim finds two contusions present on her body being on the face and neck. She was although in her medical examination report, opined to be used to sexual intercourse and the doctor did not give any definite opinion about rape but the same would not have any significance as she was a married lady which is undisputed fact. The prosecution version with regard to the accused pressing neck of the victim while she was making an effort to raise a shout, gets corroborated from the injury no. 2 in the medical examination report which is contusion on the left side of the neck upper part. The version of the victim does not, in any way, gets distorted as stated by her in the court and the same is consistent throughout. The reason for false implication as stated by the accused in his statement under Section 313 Cr.P.C. is without any basis.

In so far as recovery of cloths are concerned, although the Investigating Officer states that he cannot with certainty state as to whether they were sent for chemical analysis, would not render the entire prosecution story false as the evidence of the victim herself is sufficient to prove the act of rape and the allegation of it. There is no inconsistency in so far as the implication of the appellant, the allegation of rape against him are concerned.

23. 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.

24. The appellant is in jail in pursuance of an order dated 09.3.2022 passed by a co-ordinate Bench of this Court issuing non bailable warrants against him. He shall remain in jail to serve out the remaining sentence as awarded by the trial court.

25. Office is directed to transmit the copy of this judgement 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