Chhote vs State Of U.P.
2022 Latest Caselaw 22189 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 15.11.2022
 
Delivered on 21.12.2022
 
Court No. 82
 
Case :- CRIMINAL APPEAL No. - 1349 of 2018
 

 
Appellant :- Chhote
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Aishwarya Pratap Singh,Abhishek Mayank
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mayank Kumar Jain, J.

1. This criminal appeal has been preferred by the appellant against the judgment and the order of sentence dated 07.11.2017 passed by the then Additional Sessions Judge/Fast Track Court No.1, Aligarh in Sessions Trial No.437 of 2014 (State Vs. Chhote) arising out of Case Crime No. 124 of 2013, under Sections 376, 324 of IPC, Police Station Barla, District Aligarh whereby the appellant-accused was convicted and sentenced under Section 376 of IPC for ten years rigorous imprisonment along with a fine of Rs.10,000/- and under Section 324 of IPC for two year rigorous imprisonment with a fine of Rs.5,000/-.

2. The facts of the case are that on 4.11.2013 victim X submitted a written retport at 14.30 to the police station concerned stating that on 2.11.2013 around 6.00 p.m. she went to take " Kanda"(Cow dung cake) from her " Bitora"(Place for storage). Chhote who is the resident of her village came there, caught hold of her forcibly and raped her. He bite her on the cheek. She raised the alarm. Upon hearing Dashrath S/o Ram Swaroop came there and got her rid of him with some difficulty. Her report be lodged and legal action be taken.

3. On the basis of the aforesaid written report a First Information Report (Ex.-Ka 6 ) was registered as case crime No. 124/2013 under sectionat 376 IPC against the appellant/ accused Chhotte in police station Barla Distt. Aligarh. Victim X was sent for her medical examination.

4. The investigation was entrusted to S.I. Ravi Tyagi who after completing preliminary formalities recorded the statement of Victim and witnesses. The statement of the victim U/S 164 Cr.P.C. was recorded. He prepared the site plan of the place of occurance. After the conclusion of the investigation a charge sheet came to be filed against the Appellant/ accused Chhote u/s 376/324 I.P.C.

5. After committal of the case to the Court of Session, it was registered as Session Trial No.437/2014, State VS. Chhote.

6. Charges u/s 376/ 324 IPC were framed against the appallant/ accused. He denied with the charge and claimed to be tried.

7. To bring home the charge the against Appellant/accused prosecution produced PW-2 victim X and PW-3 Dashrath as the witnesses of fact and PW-1 Dr. Parveen Jahan, PW-4 Constable 105 Hari Shankar, PW-5 S.I. Ravi Tyagi, the Investigating Officer and PW-6 Dr. Amit Singh.

8. After close of the prosecution evidence statements of the accused appellant u/s 313 Cr. P.C. was recorded. He denied that he committed the crime as stated by the prosecution and its witnesses. Investigation was not done fairly and impartially. Witnesses deposed against him falsely. Witness Dashrath is the Brother-in-law (Dewar) of the victim so he gave his gave evidence under conspiracy. Being the brother in law of the victim he eas an interested witness. No reliance can be olaced upon his teatimony. Charge sheet had wrongly been filed against him.

9. Learned counsel for the appellant argued that there are material contradictions in the evidence of PW-2 Victim X and alleged eye witness PW-3 Dashrath. Medical report of the Victim does not corroborate the case of prosecution that the applleant raped her. No external or internal injury was found on the private part of the victim and spermatoza was also not found. Admittedly the victim was a mother of five children at the time of the alleged incident.

10. Learned counsel for the appellant vehementally argued that during the medical examination PW-1 Praveen Jahan found that the victim was two month's pregnant. The victim in her deposition had denied this fact. The victim had made material improvments in her statement before the Court. PW-3 Dashrath is an interested witness since he happened to be the brother-in-law of the victim. On the basis of the deposition of PW-3 Dashrath Singh he cannot be said to be the eye witness of the incident. Blood stained clothes were not produced before the court during the trial. PW-6 Dr. Amit Singh, during medical examination of the victim, found that the injury on the cheeks of the victim was simple in nature. The first information report is lodged with the delay of two days and no plausible explanation was given by the victim.

11. Lastly, leaned counsel for the applleant submitted that learned trial court did not appreaciate the oral and documentary evidence in right perspective and had erroneously convicted the appellant. The appeal deserves to be allowed and the appellant is entitled to be aquitted.

12. Per contra, learned A.G.A. countered the arguments and submitted that Victim X has proved the prosecution version in her deposition. Her statement under section 164 Cr.P.C. was also recorded during the investigation. No material contradictions occurred during her depositon which may adversly effect the prosecution version. PW-3 Dashrath is the eye winess of the incident. He had corroborated the evidence of the Victim. His evidence inspires confidence. The learned trial court has appreciated the evidence available on record righfully and has convicted the appellant. The appeal is lible to be dismissed.

13. I have heard Sri Krishna Kumar, Advocate holding brief of Sri Abhishek Mayank, learned counsel for applleant and Sri Rishi Chaddha, learned A.G.A. for the State and perused the record. I have re-appreciated the evidence available on record.

14. PW-2 X is the victim in this case. She stated in her evidence that on the day of occrurance at around 6:00 pm she went to take cow-dung cake "Kande" (Mode for cooking) and as soon as she came out from her "Bitora" (Place for storage) the accused Chhotte, who is a resident of her village, came there and caught her and dragged her to the field. He raped her and threatened her that she would be killed if she mentioned about this to any one. She made repeated request to him. He bite on her cheeks. On hearing her sound, Dashrath came there and forcibly removed Chhotte from her. Her husband was not at home. She dictated the report to Firoz and after hearing, put her thumb impression on it. She has proved the report as EX.Ka-3. She has also proved her statement recorded under sectin 164 Cr.P.C. as Ex.Ka-4.

15. PW-3 Dashrath in his examination in chief has stated that on the day and time of occurance, he was returnig from his field. Upon hearing alarm he entered into the field and saw that Chhotte was riding over the victim X. He was forceibly raping her. He removed him forcibly and threatetnd to call the police. The accused then ran away. He brought the victim to her house. The victim had a cut mark on her cheek. She told him that Chhote bit her while raping her.

16. PW-1 Dr. Parveen Jahan stated in her examination in chief that on 4.11.2013, in the capacity of E.M.O. at M.L.G. hospital she examined the victim X at 10:30 pm and found that:-

Genral examination:-

17. The victim was of ordinary built. Mark of injury was found on the face which was treated at Deen Dayal Hospital. Abrasion in circular shape was found on the right side of the face. The injury was two days old. No injury was found on any other part of the body. Victim was a mother of five children. She was pregnant of two months. According to her, she took medicine for abortion three days ago.

Local Examination:-

No mark of injury on private part. Hymen old teared and connected. Mild blood was oozing from uterus. Uterus was large in size.

For confirmation of pregnancy, ultrasound was advised. Vaginal smear sent to pathology for ascetaining the presence of spermatoza. For D.N.A. report sample was sent to Forensic Loboratory.

She proved her report as Ex.Ka-1. She prepared Supplimentary report of the victim on 08.11.2013. Vaginal smear was full of blood cells and few epithelial cells were also seen. No spermatoza were seen in the smear. As per the report of ultrasound, uetrus was mildly enhanced in size and supply of blood to uterus was increased. Rest was normal. Supplimentary report was proved by this witness as Ex. Ka- 2.

18. PW-4 Constable 105 Hari Shankar stated in his evidence that on 4.11.2013, on the basis of the written report of the informant he prepared Chik F.I.R. No.79/2013. It was entered in Rapat No.17 at 14.30 on 04.11.2013. He proved Chik F.I.R. as Ex. Ka-6 and G.D. as Ex. Ka- 7.

19. PW-5 S.I. Ravi Tyagi is the Investigating Officer of this case. He stated in his examination in chief that on the basis of the written report of the informant a case was registered in his presence. During the investigation he recorded the statements of the victim, witness Dashrath, scriber of F.I.R. and the Doctors. He prepared the site plan of the place of occrurance which he proved as Ex.Ka-8. After the conclusion of the investigation he submitted the charge sheet against accused Chhote under Section 376, 324 of IPC which he proved as Ex. Ka- 9.

20. PW-6 Dr. Amit Singh stated in his examination in chief that on 4.11.2013 at 7:00 pm in the capacity of Emergency Medical Officer he examined the Victim X. Following injuries were found on her body:-

(i) Muiltiple cresentric abrasions in area of 2.5 x 2.5 cm on the right cheek, 4 cm below cuteral earthos of right eye, scab present.

(ii) Complaint of pain all over the body.

In his opinion injury no. 1 was simple in nature and was caused by human bite and duration was about 2 days.

He proved the medical report as Ex.Ka-10.

21. No documentary or oral evidence was produced by appellant/accused in his defence after the statement under Section 313 Cr.P.C. was recorded.

22. On the basis of the facts and circumstances and the evidence available on record it is required to be noted as to whether on 04.11.2013 the appellant/accused raped the victim and caused injury to her.

23. Section 375 IPC reads thus,

"375. Rape.-- A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:

First.Against her will.

Secondly.Without her consent.

Thirdly.With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.With or without her consent, when she is under eighteen years of age.

Seventhly.When she is unable to communicate consent.

Explanation 1.For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.A medical procedure or intervention shall not constitute rape.

Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

24. PW-2 the victim had corroborated the prosecution version in her examination in chief. Even during her cross examination she corroborated the factual matrix of the prosecution story. She corroborated her statement given in examination in chief during her cross examination and has stated the date of occurrence as second day of the month of Kartik and the time of occurrence as 6:00 pm. She stated that when she went to her ''Bitora' to take cow dung cake ''Kande' at that time it was not completely dark. The appellant is resident of her village and she knows him very well. The appellant caught her and dragged her to field and raped her. On raising alarm, Dashrath-PW-3 came there and rescued her from appellant. She stated that the report of the incident was lodged by her on 4th. She knows the meaning of rape. She specifically denied the suggestion that she had good relations with appellant and she implicated a false case against him when some other persons saw them together.

There are no contradictions in the evidence of prosecutrix and she has corroborated the prosecution version by cogent evidence. The evidence of prosecutrix is reliable and inspires confidence.

25. PW-3 Dashrath is the eye witness of the incident. In his evidence he has also corroborated the case of prosecution and stated that when he entered into the field he found that appellant was lying over the victim and was forcibly raping her. He removed the appellant with difficulty. He arrived at the place of occurrence after hearing the alarm.

26. There are no contradictions in the evidence of PW-3 vis a-vis the version of the prosecution. The victim, PW-1 has also corroborated the fact that when the appellant accused was raping her and she raise alarm this witness came at the spot. None other than this witness arrived there. Therefore, the presence of this witness at the time of occurrence is certified. The evidence of PW-3 Dashrath is reliable and inspires confidence.

27. So far as the argument of the learned counsel for the appellant that there are material contradiction in the oral evidence viz medical evidence that the appellant has categorically denied that she was not pregnant for two months at the time of occurrence and blood was not oozing out from her private part while PW-1 Dr. Praveen Jahan has stated likewise is concerned, the Hon'ble Apex Court in catena of cases has held that the medical evidence is always opinionative and the oral evidence shall prevail over the medical evidence when it is alleged that there are contradictions between the medial and oral evidence.

28. In C.B.I. Vs. Mohd. Parvez Abdul Kayuum, 2019 (12) SCC 1 Hon'ble Apex Court observed as under:

"The witness is not supposed to give all these minute details. It is not a case where medical evidence completely improbabilises the ocular evidence: only on that case the ocular evidence has to be discarded not otherwise. Where there is a contradiction between medical evidence and ocular evidence, the ocular testimony of a witness has greater evidentiary value vis­à­vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. The prosecution has to prove that injury was caused by the weapon in the manner as alleged. There is no dispute with the aforesaid proposition. However, in the instant case, the ocular evidence of PW­55 is not discredited by the medical evidence. Even otherwise in case of any discrepancy between the ocular or medical evidence, the ocular evidence shall prevail."

29. In Palani Vs. State of Tamilnadu, 2020 (16) SCC 401, the Hon'ble Apex Court has observed with regard to the nature of the medical evidence and about the primacy of oral evidence over the medical evidence as under:

"As per the alleged variance between the medical and ocular evidence concerned, it is well-settled that oral evidence has to get primacy and the medical evidence is basically opinionative and that the medical evidence states that the injury could have been caused in the manner alleged and nothing more. The testimony of the eye witness cannot be thrown out on the ground of inconsistency. When the opinion given is not inconsistent with the probability of the case, the court cannot discard the credible direct evidence otherwise the administration of justice is to depend on the opinionative evidence of medical expert. The medical jurisprudence is not an exact science with precision; but merely opinionative. In the case in hand, the contradictions pointed out between the oral and medical evidence are not so grave in nature that can prove fatal to the prosecution case."

30. So far as the argument of the learned counsel is concerned that the fact that PW-3 Dashrath is the relative of the victim has been admitted by the victim in her evidence, and thus, he being an interested witness, his testimony could not be relied upon, it is to be noted that the testimony of a witness cannot be discarded merely on the ground that the witness being related to the victim, would be considered as interested witness, if he corroborates the prosecution version.

31. The Hon'ble Apex Court in Mohd. Rojali Ali Vs. State of Assam, 2019 (19) SCC 567 has observed the difference between ''interested' and ''related' witness as under:

"A related witness cannot be said to be an ''interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ''interested' and ''related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused."

32. In the present case also, it is not alleged that the eye witness PW-3 was ever inimical to the appellant. Therefore, on the basis of the observation made by the Hon'ble Apex Court the evidence of PW-3-Dashrath cannot be disbelieved on account of him being a relative of the victim.

33. PW-6 Dr. Amil Singh, who initially examined the prosecutrix after the incident, found injuries on the cheek of the prosecutrix. He opined that these injuries were caused by a human bite. In this way this medical evidence also corroborate the version of the prosecution that appellant bit on the cheeks of prosecutrix during the commission of crime.

34. It is pertinent to mention here that the appellant in his statement under Section 313 Cr.P.C. only made simple denial about the evidence of prosecution and has submitted that he was falsely implicated. No plausible explanation has been mentioned by the appellant as to why he was implicated in this case and why the prosecutrix was inimical to him. Therefore, the appellant failed to offer any cogent explanation against the prosecution version.

35. In view of the documentary and oral evidence available on record it is proved that the appellant Chhote committed the rape of victim X on 02.11.2013 and bit her on the cheek. The prosecutrix has proved the case of prosecution by her cogent evidence and eye witness PW-3 Dashrath has corroborated the evidence of PW-2. The Investigating Officer PW-5 S.I. Ravi Tyagi has proved the relevant documents executed during the course of investigation including the site plan. Therefore, the prosecution proved the charges under Sections 376/324 of IPC against the appellant beyond reasonable doubt.

36. The trial Court, after appreciating the evidence available on record in right perspective, has convicted the appellant Chhote under Section 376, 324 of IPC and passed the order of sentence accordingly.

37. Learned counsel for the appellant submitted that the age of the appellant at the time of commission of crime was 18 years and he was a man of young age being first offender. He is the only bread earning member of the family. He has stated in his statement under section 313 Cr.P.C. that his mother is a widow and not able to do anything. He has already undergone incarceration of around seven years in jail. The appellant has no criminal history to his credit. The State has not filed any appeal with regard to enhancement of sentence, therefore lenient view may be taken with regard to sentence to the appellant and he may be punished with sentence undergone by him in jail.

38. Lastly, learned counsel for the appellant submitted that the age of the victim at the time of occurrence was 35 years and it is admitted fact that she was mother of five children. Apart from it, the medical examination report of the victim does not supported the version of the prosecution about rape.

39. Per contra learned AGA has opposed and submitted that appellant is not entitled for any mercy.

40. Considering the argument of learned counsel for the parties and looking into the facts and circumstance and evidence available on record and looking into the fact that appellant is a young man and his mother is widow and he is the only bread earner of the family, I find that it is a case, in which the sentence of the accused can be reduced since the accused has already undergone substantial part of the sentence.

41. In view of observation made by Hon'ble Supreme Court in the case of Bavo alias Manubhai Ambalal Thakore vs State of Gujarat, reported in 2012 (2) SCC 684, I find that the ends of justice would be met if the sentence of ten years' rigorous imprisonment under section 376 IPC and two years' rigorous imprisonment under section 324 IPC of the appellant is modified to the period already undergone, i.e. seven years, but the fine of Rs. 15,000/- is hereby maintained.

Order

42. The criminal appeal is partly allowed. The order of conviction dated 07.11.2017 is hereby affirmed. However, as per the custody certificate appellant is in jail since last seven years. The sentence of the appellant is modified to the period of detention already undergone by him. He shall be released forthwith unless wanted in any other case. The provision of Section 437-A Cr.P.C. shall be complied forthwith.

43. However, the appellant Chhote is directed to deposit the fine amount awarded by the lower court forthwith.

44. The amount so deposited by the appellant Chhote shall be given to the victim after due verification in view of provision of section 357 Cr.P.C.

45. Let the copy of the judgment be transmitted to learned trial court to ensure the compliance.

 
Dated: 21.12.2022
 
Mohit 							(Mayank Kumar Jain, J)