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2003 DIGILAW 2591 (ALL)

STATE OF U P v. SUDHIR

2003-11-04

M.C.JAIN, ONKARESHWAR BHATT

body2003
M. C. JAIN, J. The State is aggrieved by the judgment dated 3-11-1998 passed by Sri A. K. Rastogi, Additional Sessions Judge/special Judge (E. C. Act), Bulandshahr in S. T. No. 213 of 1997, acquitting the accused-respondent Sudhir of the charge under Section 376 I. P. C. relating to commission of rape on a girl of tender age of 9 years. 2. The incident took place on 14-1-1997 at about 5. 30 p. m. in the field of Hans Raj situated in the jungle of village Akbarpur Raina, Police Station Agauta, District Bulandshahr. The report was made on 14-1- 1997 at 9. 05 p. m. by Jai Prakash (father of the victim) who died during the trial before his evidence could be recorded. On the fateful day, the complainant, his wife Gayatri Devi PW 2 and the prosecutrix Guddi PW 1 were watching the grove of guava belonging to Jagdish Master which they had taken on contract. Leaving the prosecutrix there, the parents came to their house to prepare fodder for the cattle. When they returned back to the grove, they found their daughter Guddi to be missing and made a search for her calling her by name. They heard her sobbings at about 5. 30 p. m. from the nearby field of sugarcane of Hans Raj. They hastened to that side and found the accused-respondent committing rape on their daughter who was sobbing. Seeing them, he ran away. 3. Consequent upon the lodging of the F. I. R. , a case was registered in the night itself. At 1. 10 a. m. the victim was subjected to medical examination which was conducted by Dr. Saranju Kumar PW 3. Her hymen was found torn at 6 Oclock position; vagina admitted one finger; perineal tear was present; vaginal mucosa muscles skin torn at about an inch in length and edges of tear were bleeding on touch. Vaginal smear swab was taken and sent for pathological examination. She was admitted for treatment. Radiological test with X-ray was taken for determination of her age and on the basis of the same her age was determined to be about 9 years. The defence was of denial. 4. Vaginal smear swab was taken and sent for pathological examination. She was admitted for treatment. Radiological test with X-ray was taken for determination of her age and on the basis of the same her age was determined to be about 9 years. The defence was of denial. 4. The trial Court recorded acquittal on the premises that the eye-sight of the mother of the prosecutrix was weak and that the victim had seen the accused for the first time in the Court, but his test identification parade had not been conducted. However, finding was recorded that rape had been committed with the girl. 5. The accused-respondent had also examined PW 1 Jai Prakash Singh Lekhpal of village Akbarpur Raina to say that Jagdish Master or his wife Sheela had no field adjacent to that of Hans Rajs sons. Hans Raj had died and his land had come to be recorded in the names of his four sons, according to him. Thakur Das DW 2 Lekhpal of village Agauta deposed that Hans Raj had no land in village Agauta, though his sons had their land adjacent to which was the field of Sheela wife of Jagdish Master. 6. We have heard Sri M. C. Joshi learned A. G. A. from the side of the State in support of the appeal and Sri P. K. Srivastava, learned counsel for the accused-respondent in opposition thereof. We have also carefully gone through the evidence on record and we are of the opinion that acquittal recorded by the trial Judge is wholly unsustainable being based on hyper-technicalities which cannot at all be sustained. The reasons which we are going to specify would make it abundantly clear. 7. The prosecutrix was a minor girl of tender age of 9 years as was found by her medical examination. The commission of rape on her was established by clinching medical evidence which we have referred to above. It was a case of single accused with no enmity of the prosecution side with him and it overruled the possibility of false implication. The informant (father of the victim) could not be examined by vis major as he died during the trial. The prosecution witnesses and the accused-respondent being the residents of the same village, it could not at all be doubted that the latter was known to the former from before. The informant (father of the victim) could not be examined by vis major as he died during the trial. The prosecution witnesses and the accused-respondent being the residents of the same village, it could not at all be doubted that the latter was known to the former from before. The reason assigned by the prosecution was convincing that the parents of the victim having come to the house to make fodder for the cattle, the girl was left alone at the grove to guard the fruits on the trees and the accused-respondent availed of this opportunity. 8. We are clearly of the opinion that the trial Judge misinterpreted the statement of the prosecutrix and misutilized it for relying as a ground of acquittal. What she stated should be quoted: "sudhir KO MAI AB BHI DEKH RAHI HOON. SUDHIR KO POLICE NE MERE SAMNE NAHI PAKARA. SUDHIR KO MAINE ADALAT SE PAHALE KABHI NAHI DEKHA. " 9. Her first sentence, sudhir Ko Mai Ab Bhi Dekh Rahi Hoon was impregnant of clear indicator that she had seen him before and was again seeing him in the Court. Inference was to be drawn from the entirety of her statement, without picking up a single sentence to unnecessarily strain it beyond permissible limits. Even if it was taken for the sake of the argument (though we do not believe it to be that) that she saw him for the first time in the Court after rape, then it did not mean that she had never seen him before she saw him at the time of committing rape on her. He belonged to her own village. She did see him from a close range when he committed rape on her and even if she saw him thereafter for the first time in the Court, it did not negative her evidence justifying his acquittal on this flimsy ground. There was no necessity of the accused-respondent to be put to identification parade. In a rape case, the Supreme Court has held in a recent decision of Malkhan Singh and others v. State of M. P. , 2003 (2) JIC 497 (SC) (2003) 5 Supreme Court Cases 746, that the test identification parades do not constitute substantive evidence. The substantive evidence is the evidence of identification in the Court. In a rape case, the Supreme Court has held in a recent decision of Malkhan Singh and others v. State of M. P. , 2003 (2) JIC 497 (SC) (2003) 5 Supreme Court Cases 746, that the test identification parades do not constitute substantive evidence. The substantive evidence is the evidence of identification in the Court. In appropriate cases, the Court may accept the evidence of test identification in the Court, even without insisting on such identification or other corroboration. Where the evidence of the prosecutrix is found to be implicitly reliable, the conviction of the accused in the absence of the test identification parade could be sustained on the basis of the identification of the accused by the prosecutrix in the Court. In the present case, this ruling squarely applies. The prosecutrix and the accused resided in the same village, knowing each other from before. In addition to this, she clearly saw him from close proximity committing rape on her and thereafter she saw and identified him as the culprit in the Court. Without considering the full import of her testimony before the Court, the trial Court emphasised singular sentence of her testimony as justification for recording acquittal. It also could not form a ground for criticism and rejection of the testimony of the prosecutrix that before her evidence in the Court, she had discussion with her family members in that regard. A discussion in that regard in the family was natural. They could not remain tight-lipped while conversing before she was actually examined in the Court. We are firmly of the view that there was nothing in the testimony of the prosecutrix which could justify the rejection of her evidence that it was the accused-respondent who had committed rape on her. 10. The testimony of her mother, namely, Gayatri Devi PW 2 could also not be made a ground for rejecting the prosecution case on the premise that she had a weak eye-sight and had seen the accused- respondent running from back side. She had reached at the spot on hearing the sobbing of her daughter emanating from the sugarcane field of Hans Raj and had rushed to that side. She stated in unalloyed terms as to what she had actually seen. She could well recognize him. She had reached at the spot on hearing the sobbing of her daughter emanating from the sugarcane field of Hans Raj and had rushed to that side. She stated in unalloyed terms as to what she had actually seen. She could well recognize him. She, knowing him even from before, could unmistakably be sure about his identity by his gait and personality even while he was fleeing. The trial Judge was unjustifiably over-suspicious about every aspect of the prosecution evidence as if he was in search of justifications to throw away the clinchingly established prosecution case. 11. We are also of the opinion that the testimony of two defence witnesses did not shake the prosecution case even in a bit. The accused-respondent stated under Section 313 Cr. P. C. that witnesses gave evidence against him due to enmity. This itself indicated that he was known to them from before. It could not be proved by their testimony that there was no sugarcane field of Hans Raj adjacent to the grove of Jagdish Master which the prosecution side had taken on contract. Confusion was unnecessarily attempted to be introduced as to the actual territorial jurisdiction whether the same lay in village Agauta or village Akbarpur Raina. The factual position about proximity of the two was not at all clouded, nomenclature of the village comprising the same being inconsequential. 12. Lastly, the learned counsel for the accused-respondent argued that the Investigating Officer in the case was not produced. We do not think that it has affected the prosecution case adversely. The papers prepared by the Investigating Officer were formally proved by Jugendra Singh PW 4. The Supreme Court held in the case of Visveswaran v. State, 2003 (2) JIC 324 (SC) : (2003) 6 Supreme Court Cases 73, that any deficiency or irregularity in investigation need not necessarily lead to the rejection of the case of the prosecution when it is proved otherwise, as is the situation here. 13. In the result, we do not find merit in any of the arguments advanced by the learned counsel for the accused-respondent. We disagree with the reasoning adopted by the trial Judge in acquitting the accused-respondent as we have dealt with above. 14. Resultantly, we allow this appeal and reverse the finding of acquittal recorded by the trial Judge. 13. In the result, we do not find merit in any of the arguments advanced by the learned counsel for the accused-respondent. We disagree with the reasoning adopted by the trial Judge in acquitting the accused-respondent as we have dealt with above. 14. Resultantly, we allow this appeal and reverse the finding of acquittal recorded by the trial Judge. We find accused-respondent Sudhir to be guilty of the offence under Section 376 I. P. C. and we shall convict him therefor. He committed a beastly act of raping a minor girl of tender age of 9 years, he himself being aged about 32 years as recorded in his statement under Section 313 Cr. P. C. on 25-9-1998. Really speaking, he was a wolf in human shape. 15. Having regard to the totality of the facts and circumstances of the case, we convict the accused- respondent under Section 376 I. P. C. and sentence him to undergo rigorous imprisonment of seven years. The accused-respondent Sudhir is on bail. Though non-bailable warrant was issued against him on 5-9-2003, but the execution of the same was stayed later on the assurance of his counsel to argue out the appeal which was ultimately argued on 15-10-2003. He shall now be arrested and sent to jail to serve out the sentence of rigorous imprisonment of seven years imposed on him. 16. A copy of this judgment is directed to be immediately sent to Chief Judicial Magistrate, Bulandshahr who shall ensure that the accused-respondent Sudhir is arrested and lodged in jail to serve out the sentence of rigorous imprisonment of seven years imposed on him. The Chief Judicial Magistrate concerned shall report compliance within two months. Appeal allowed. .