Ram Bharose vs State
2023 Latest Caselaw 5660 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 29.11.2022
 
                   Judgment delivered on 21.02.2023
 
Court No. - 69
 

 
Case :- CRIMINAL APPEAL No. - 2931 of 1988
 

 
Appellant :- Ram Bharose
 
Respondent :- State
 
Counsel for Appellant :- Rajiv Gupta,Kamal Kishor Mishra (Amicus Curiae)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Samit Gopal,J.

1. The present Criminal Appeal under Section 374(2) Cr.P.C. has been preferred by the appellant Ram Bharose, against the judgment and order dated 15.12.1988 passed by VIIth Addl. District and Sessions Judge, Meerut in Sessions Trial No. 251 of 1986 by which the appellant has been convicted and sentenced under Section 376 IPC to five years R.I and under Section 366 IPC to two years R.I. The sentences have been ordered to run concurrently. The accused-appellant has been acquitted of the charges levelled against him under Section 363 IPC.

2. The 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 judgments and as per Section 228A of the Indian Penal Code. She is, thus, referred to as victim ''X' in the judgment.

3. The prosecution case as per application dated 10.12.1985 given by Prem Singh, S/o Faqir Chand to the police is that he is a rickshaw puller and his wife works in a school. On 10.12.1985 he had gone with his rickshaw to earn his livelihood and his wife had gone to school, his two daughters aged about 14 years and 10 years were at home. When he returned home at about 5.30 p.m., his younger daughter Kusum told him that victim ''X' was called by Ram Bharose, s/o Sharman and Jai Prakash, s/o Bhagirath and they have taken her away at about 2.30 p.m. by telling her that her father has called her for purchasing of sleepers (chappal). Kamal Singh is also involved in it. When he went to them and inquired about his daughter, they showed ignorance about it. When he asked Bhagirath, the father of the accused, he in turn asked his sons. Bhagirath asked them about the girl then they assaulted their father. His minor daughter has been lured by them has been abducted by them. The accused persons previously used to visit his house. His report be lodged and appropriate action be taken. The said application is Exb: Ka-3 to the records.

4. On the basis of the said application, a FIR was lodged on 10.12.1985 at 10.30 p.m. as Case Crime No. 510 of 1985 under Sections 363, 366 IPC against Ram Bharosey, Kamal Singh and Jai Prakash. The Chik FIR is Exb: Ka-6 to the records.

5. The victim was recovered on 12.12.1985 and her medical examination was then conducted on 13.12.1985 at 2.30 p.m. by Dr. Vandana Srivastava, the Medical Officer, Womens Hospital, Meerut. She was brought by police constable. The doctor conducting the medical examination noted as follows:-

"Height-4 feet 7½ inches, Weight-78 Lbs, Teeth-14/14, breast well developed, Axillary hairs : present. Pubic hairs : present

On external examination, the doctor noted as follows:-

"O/E: No marks of external injuries present on private parts."

On internal examination, the doctor noted as follows:-

"P/V exa:- Vagina admits two fingers easily. Hymen torn, old tear present. Uterus is normal in size and position."

Her vaginal swab was taken and sent to pathologist for microscopic examination for presence of alive or dead spermatozoa. Girl was sent to radiologist for x-ray examination for affirmation of age. The opinion of the doctor is as follows:-

"No opinion about rape can be given as girl is habitual for sexual intercourse."

The same is Exb: Ka-1 to the records.

Supplementary report dated 30.12.1985 was prepared in which in the vaginal report, no sperm was seen and opinion regarding which was given. The said opinion is as follows:-

"As per X-Ray report, the girl is about eighteen years (18 years) old."

The said report is Exb: Ka-2 to the records.

The X-Ray report is Exb: Ka-4 and pathological report is Exb: Ka 5 to the records.

6. The victim "X" was given in the custody of her mother Smt. Parvati, W/o Prem Singh, the first informant. The said memo is Exb: Ka-13 to the records.

7. The investigation concluded and charge sheet no.244 of 1986 dated 4.1.1986 was filed against the applicant Ram Bharose under Sections 363, 366, 376 IPC and against co-accused Krishna Kumar @ Kukku under Section 368 IPC. The same is Exb: Ka-14 to the records.

8. Vide order dated 14.7.1986 passed by VIIth Additional District and Sessions Judge, Meerut, charge under Section 363, 366, 376 IPC was framed against the accused-appellant Ram Bharosey. In so far as Krishna Kumar @ Kukku is concerned, charge under Section 368 IPC was framed against him vide order dated 14.7.1986 passed by the VIIth Additional Sessions Judge, Meerut.

9. By the impugned judgment and order, Krishna Kumar @ Kukku was convicted and sentenced for 2 years R.I. under Section 368 IPC. He is not the appellant before this Court.

10. The prosecution produced and examined Dr. Vandana Srivastava as P.W.1 who examined victim "X" and prepared the medical examination report Exb: Ka-1 and the supplementary report Exb: Ka-4, victim "X" as P.W.2, Prem Singh, the first informant as P.W.3 and R.K. Sharma, the Investigating Officer as P.W.4.

11. In the trial, the genuineness of certain documents were not disputed by the defence and as such formal proof was dispensed with, the same are as follows:-

i. Memo dated 13.12.1985 of giving custody of victim "X" to her mother - Exb: Ka-13.

ii. X-Ray report dated 14.12.1985 Exb: Ka-4.

iii. The vaginal smear report dated 16.12.1985 Exb: Ka-5.

12. Dr. Vandana Srivastava, the Medical Officer, Daffrin Hospital, Meerut is P.W.1. She has proved the medical examination report of victim "X" which is Exb: Ka-1 to the records and the supplementary report which is Exb: Ka-2 to the records. The details of both the reports have already been given above. She states that in her opinion, the age of victim "X" can have a difference of three years on both the sides.

In her cross-examination, she states that fusion of the joints depends on the feeding, living style, atmosphere and hereditary. The fusion of joints of persons who do not get proper nourishment is delayed. She further states that fresh tear of hymen will not heel in 3-4 days.

13. The victim "X" is P.W.2. She identifies the accused Ram Bharosey in Court and states that he used to visit her house and used to call her father as Chacha. About two and half years back during winters, he met her at about 2.30 p.m. she was in the house with her younger sister Kusum, her father had gone out to work, her mother had gone to the school where she was employed, the accused Ram Bharosey came to her and told her that her parents have called her for purchasing her sleepers on which she went with him. He took her to Sector 4 Shastri Nagar to the house of his relatives. Then accused Kukku took her to his house where his wife was present. She told Kukku in the evening to drop her back to her house on which he said that the person who had brought her would drop her. Ram Bharosey came at 7 p.m. Kukku told Ram Bharosey to take her to the room. Ram Bharosey took her in the night to another room. Kukku and others were in a different room. Ram Bharosey raped her forcibly. He took out her clothes, tied her hands and legs and committed rape on her. On the next day she told them to drop her at her house but Ram Bharosey locked the room and went away. He came at 7 p.m. In the night he again raped her. Kukku and his wife were in the other room. On the next day she again told him to drop her back to her house on which he threatened her that if she talks about it to her parents, he would murder her. In the evening at about 4.45 p.m. police came and apprehended them from the house of Kukku. Kukku was not present there. His wife was there. The police got her medically examined.

14. In her cross-examination, she states that she has three younger sisters and one brother. She has one elder sister also. Her elder sister was married at the time of incident. They were living in Shastri Nagar since three months before the incident. Before it they were living in the house of Jai Prakash in Nehran Nagar. When Ram Bharosey took her, Jai Prakash was also with him. Jai Prakash is a relative of Ram Bharosey. Ram Bharosey used to come to the house of Jai Prakash. In Nehran Nagar, Ram Bharosey never came to her house or met them. He used to come to the house in Shastri Nagar even before the incident. Before the incident, her father never sent Ram Bharosey and Jai Prakash to call her. She had asked him about her father on which Ram Bharosey told her that he is standing ahead. Her father is a rickshaw puller. Ram Bharosey has come walking to call her. She did not suspect Ram Bharosey. Her parents had never told her before for purchasing sleepers. She knew that there was no shop of sleepers in Shastri Nagar. She did not tell Ram Bharosey that her father did not tell her to purchase sleepers. When the accused took her, she told him as to where he is taking to which he said that her parents are present ahead. Her mother works in a school which is near Nandan Cinema. Her mother used to go to the school at 8 a.m. and used to come back at 5 p.m. She did not feel suspicious as to how her mother is calling at this time. There are houses all around the house of Kukku. Her house is slightly away from the house of Kukku. It is about 50-70 yards away. When Ram Bharosey was taking her, he was going in front and she was following him. She came to know of the inmates of the house of Kukku from outside only. When she saw her parents not present there, even then she did not suspect anything. Ram Bharosey forcibly pulled her inside the house of Kukku. She told him not to take her inside and even shouted for help but no neighbour came up. When she came with Ram Bharosey to the house of Kukku, she saw many people sitting in the sun. The rooms in the house of Kukku are by the side of each other. Ram Bharosey left her at the house of Kukku and went away after which she told Kukku to drop her to her house and he said that Ram Bharosey would take her back. She after 3-4 hours tried to go out of the house but Kukku and his wife did not let her go. She then started crying and shouting but no neighbour came. There is a road in front of the house of Kukku. The door of his house was open. Prior to the occurrence, she did not know what was bad work. Prior to the incident Ram Bharosey never cracked any jokes or teased her. She states that both her hands and legs were tied with a rope. She had received injuries and there was blood coming out. She had shown the injuries to the doctor. Her statement was recorded by the Magistrate. She states that she told the Magistrate that Ram Bharosey told her that her parents are calling her for purchasing sleepers but she does not know as to why the same was not written in her statement. She states that there were no talks going on of her marriage with Ram Bharosey. She had told the Magistrate that Ram Bharosey had told her that he would keep her and would marry her. She was not ready for marriage. She denies the suggestion that she had old relationship with Ram Bharosey. She further denies the suggestion that she wanted to marry Ram Bharosey and she went with him out of her own sweet-will happily. She states that in the second night Ram Bharosey did bad work 3-4 times with her. Her private parts got swelled and she was having pain.

15. Prem Singh, P.W.3 is the first informant and father of the victim "X". He states that he knows Ram Bharosey since before. On the day of occurrence at about 8 a.m. he had gone from the house for his work and his wife had gone to school where she is a peon. His daughter Km. Kusum aged about 8 years and victim "X" aged 13-14 years and the 3rd daughter Km. Vimla who is dumb were at the house. He returned to the house at about 5.30 p.m. and was told by Km. Kusum that Ram Bharosey and Jai Prakash had come to the house and told victim "X" that her parents are calling her for purchasing sleepers for her and took her away. He searched for his daughter but did not find her and then went to lodge the report. His daughter was recovered on 3rd-4th day from the house of Kukku. She was given in the supurdagi of his wife after medical examination.

16. R.K. Sharma, P.W.4 is the Investigating Officer of the matter. He took up the investigation and prepared the site-plan Exb: Ka-8 on 12.12.1985, recorded the statements of the witnesses, recovered victim "X" on 12.12.1985 from the house of Kukku and took accused-appellant Ram Bharosey in custody. Concluded the investigation and filed charge sheet against the accused persons.

17. The trial court then convicted and sentenced the accused-appellant as stated above.

18. Heard Sri Kamal Kishore Mishra, learned Amicus-Curiae for the appellant, Sri B.B. Upadhyay, Sri S.B. Maurya and Sri Ankit Srivastava, learned counsels for the State and perused the records.

19. Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. It is argued that the present case is a case of consent. The victim "X" went with the appellant on her own sweet-will happily. The medical examination does not corroborate the prosecution case. It is argued that the doctor in the supplementary report opined the age of the victim as about 18 years. It is argued that the victim went with the accused-appellant on foot and did not resist the same. The doctor did not find any external injury on her body. It is argued that the victim stated of being confined in the house of Kukku which was in a densely populated area but she did not make any effort to resist the same and tried to make any alarm of her being illegally detained there. It is argued that in so far as the age of the victim is concerned, even the trial court has held that she was a major at the time of incident and was aged about 18 years. It is argued that the said finding is final and is not under challenge. It is argued that although as per the settled law, the testimony of a prosecutrix can be accepted without any corroboration and she has to be placed on a higher pedestal than an injured witness but the same has to be tested with caution and care. It is argued that the corroboration of the prosecution story does not get support from the medical evidence and as such the story as narrated by the victim "X" cannot be believed to be true. It is argued that the victim stated of her receiving injuries but no such injury was found by the doctor either on her external body or internally. It is further argued that the story regarding the victim being taken for purchase of sleepers has been stated for the first time in court which was not told to the Investigating Officer during the interrogation. It is argued that the appellant deserves to be extended the benefit of doubt. He deserves to be acquitted.

20. Per contra, learned counsel for the State argued that the FIR is a prompt report. The testimony of victim "X" P.W.2 is consistent throughout. No suggestion has been given for her being a consenting party. It is argued that the present incident is of 10.12.1985 and she was medically examined on 13.12.1985 and as such the doctor not finding any injuries either on her person or her private part is quite natural. It is argued that prosecution has succeeded in proving its case beyond reasonable doubt against the accused-appellant. The present appeal deserves to be dismissed.

21. After having heard learned counsels for the parties and perusing the record, it is evident that that in so far as the age of victim "X" is concerned, the trial court has returned a finding that she is a major at the time of incident and aged about 18 years. The same is final. The medical examination report does not find any injury either on her body or on her private parts. The allegation of rape does not gets corroborated from the medical examination report at all. The victim "X" states that the accused took her from the house on the pretext of her father getting her sleepers from the market after which she followed him and went to the house of Kukku where she was detained for two days and was raped for two nights by the accused-appellant. The story regarding purchase of sleepers was not disclosed by her to the Investigating Officer during the interrogation. She states that the house of Kukku was near to her house and was at a place which was which was surrounded by houses from all sides. In the front, there was a public road. Her testimony does not inspire confidence to the fact that she tried to resist her being detained at the house of Kukku as there appears no serious and sincere efforts by her to raise any alarm or resist her being there. Her version of repeatedly telling to the accused-appellant and Kukku of dropping her back to her house also does not appears to be probable as she already stated that the house of Kukku was near to her house and was at a distance of 50-70 yards only. The prosecution story thus does not transpire confidence as has been narrated by victim "X". In view of the inconsistency and the version of victim "X", the accused-appellant is entitled to benefit of doubt.

22. The appeal stands allowed. The judgment and order of the trial court is hereby set-aside. The appellant is acquitted of the charges levelled against him.

23. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

24. Sri Kamal Kishor Mishra, learned Amicus Curiae who was appointed Amicus Curiae vide order dated 13.7.2022 passed by this Court, assisted the Court in deciding the appeal. Office is directed to pay his remuneration as per rules within two months from today.

25. The office is directed to send the certified copy of this judgment along with the trial court records to the trial court concerned for necessary information and follow-up action.

          (Samit Gopal, J.)

Order Date :- 21.02.2023

Gaurav