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2010 DIGILAW 1580 (ALL)

Ram Baran v. State of U. P.

2010-05-13

YOGENDRA KUMAR SANGAL

body2010
Yogendra Kumar Sangal, J.:- This appeal has been filed by the appellant Ram Baran against the judgement and order dated 08.07.1999 passed by the Special Judge S.C. S.T. Act, Gonda. By the impugned judgement and order, learned Session Judge held guilty to the appellant for the offence under Section 376 IPC and also under Section 3 (10)(XII) S.C.S.T. Act and sentenced him to undergo RI for three years under S.C.S.T. Act and RI Six years for the offence under Section 376 IPC. 2. As per prosecution case, a report was lodged by the informant Jhagru with the averments that his Grand Daughter (Natin) went to collect grass from the filed. When she came back in the noon, she was weeping and was also in pool of blood and stated before him and other family members that when she was collecting the grass, accused in the noon came there and caught hold her and committed rape on her. She received injuries. A case was registered against the accused. Investigation started. Prosecutrix was medically examined by the Doctor and the Doctor had opined that her hymen was found torned. Tear was present at six O' clock position. Fresh blood from the private part was oozing. Vagina bleeds on touch. She was referred for X-ray to ascertain her age and by report she was found about 12 years of age at the time of occurrence. Statement of the witnesses were recorded. Site Plan of the place of occurrence was prepared. Under Garment of the prosecutrix and the accused were taken into custody. Blood stain and Sada Mitti from the spot was collected. After concluding the investigation, charge-sheet was submitted against the accused-appellant. As the case was exclusively triable by the court of Session, the same was committed to the court of Session for trial of the accused. 3. Accused was charged to face trial for the offence under Section 376 IPC and 3(1)(XII) of the S.C.S.T Act, he pleaded not guilty and claimed his trial. On behalf of the prosecution seven witnesses were examined. P.W. 1 is informant Jhagru, who had given the case of FIR in his statement and proved the same. P.W. 2 is the victim of the case and she had narrated facts of the case and she also named the accused and stated that he committed rape on her. On behalf of the prosecution seven witnesses were examined. P.W. 1 is informant Jhagru, who had given the case of FIR in his statement and proved the same. P.W. 2 is the victim of the case and she had narrated facts of the case and she also named the accused and stated that he committed rape on her. P.W. 3 Santram is father of the victim and he has also supported the version of the FIR. P.W. 4 Doctor Smt. Meena Shrivastava had examined the girl and given the detail what she found in her examination. She stated that he had given detail in her report prepared by her at the same time. She ahs also stated that supplementary report was brought before her and she had opined that at the time of occurrence, the girl was about 12 years of age. P.W. 5 Doctor A.K.Srivastava stated that on reference, he get X-rayed different parts of the body of the prosecutrix for the purpose of ascertaining her age. P.W. 6 is the Investigating Officer of the case and he has given the detail of the investigation and proved the documents prepared by him. P.W.7 is the Head Moharrir who prepared the Chik Report and registered the case in G.D. 4. In his statement under section 313 Cr.P.C. the accused-appellant denied the correctness of the prosecution case and the evidence and said he has been falsely involved in the case due to enmity. Two witnesses were examined on his behalf in defence. D.W.-1 Jasvir and D.W. 2 Ram Sumeran Verma. Jasvir stated that marriage of the prosecutrix took place in the year 1991 and Gauna had taken place in the year, 1997 and he issued a certificate in this regard. Ram Sumeran stated that he has also issued certificate about the marriage of the prosecutrix. 5. After hearing the counsel for the appellant and the State counsel and perusing the record, trial court held guilty and sentenced the accused-appellant as above. Aggrieved by this order, the instant appeal has been filed. 6. Heard learned counsel for the parties, learned AGA for the State and perused the record. 7. As per prosecution case, rape was committed on the minor Natin of the informant and at that time her age was about 12 years. Aggrieved by this order, the instant appeal has been filed. 6. Heard learned counsel for the parties, learned AGA for the State and perused the record. 7. As per prosecution case, rape was committed on the minor Natin of the informant and at that time her age was about 12 years. In her on own statement, prosecutrix has stated that her age was only six years while on behalf of the accused, it was argued that she was about 16-17 years at that time. No reliable evidence in support of the fact that she was 16-17 years of age at the time of occurrence, was adduced on behalf of the accused. In the FIR, itself her age was mentioned 12 years. Dr. had also opined that at the time of occurrence, she was about 12 years. Learned AGA argued that she is an illiterate village lady. If some discrepancies are there regarding her age in the evidence of the prosecution, it will not materially affect the case of the prosecution. There is force in the arguments of the learned AGA. It is not uncommon in the village life that minor children does not know their correct age. 8. Two witnesses P.W.1, informant Jhagru and P.W.3 Santram supported the fact in their on oath statement that when the prosecutrix came back from the field, she was weeping and her cloths were wet with blood and she narrated before the family members that accused has committed rape on her. Prosecutrix had also stated in her own statement that she had stated what happened with her, to her family members when she reached at the house after the offence was committed. These facts are also there in the FIR. Learned AGA argued that statement of these witness can be taken into consideration by the court under the provisions of Section 6 & 9 of the Evidence Act. This argument is also not without force. 9. P.W. 2, prosecutrix, in her on oath statement had given the facts what happened with her and narrated that accused committed rape on her. Why she is involving the accused in such type of offence, it is not sufficiently explained on behalf of the accused. This argument is also not without force. 9. P.W. 2, prosecutrix, in her on oath statement had given the facts what happened with her and narrated that accused committed rape on her. Why she is involving the accused in such type of offence, it is not sufficiently explained on behalf of the accused. Simply it was suggested on his behalf of the accused that he bring cloths of the accused for the purpose of washing and they were lost, some altercation had taken place between them and only due to this cause, he has been falsely implicated in this case. For such minor issue, father of the prosecutrix, P.W. 3 will permit the informant to involve his daughter in such type of incident falsely keeping at stake his family reputation and marital life of the prosecutrix is neither probable nor believable. Both these witnesses have stated that when the prosecutrix came at house, her cloths were wet in the blood. Her undergarments (Kachhi) was collected by the I.O. having blood stain, is clear from the statement of the I.O. and recovery memo prepared by him. From the statement of the I.O., it is also clear that he had collected blood stain and Sada Mitti from the place of occurrence. P.W. 4, Doctor Meena Sirvastava had examined the girl and stated that her hymen was torned. Tear was at 6'0 Clock position. From private part of the victim fresh blood was oozing and even by touch blood was coming out from the private part. As per her statement for her treatment and stitching purpose she was admitted in the hospital and as per on oath statement of P.W. 1 Jhagru and P.W. 2, the prosecutrix has remained hosptalise for 7 to 8 days. In the opinion of the Doctor possibility cannot be ruled out that she may have been raped. This shows medical report and evidence support the on oath version of the prosecutrix. 10. Learned counsel for the appellant argued that no independent witness came forward to support the case of the prosecution. Learned AGA argued that generally such type of offence are not committed at such places that they can be seen by the passers by of by neighborers. It is established law that corroboration of the on oath statement of the prosecutrix by an independent witness is always not necessary in such type of cases. Learned AGA argued that generally such type of offence are not committed at such places that they can be seen by the passers by of by neighborers. It is established law that corroboration of the on oath statement of the prosecutrix by an independent witness is always not necessary in such type of cases. It was further argued on behalf of the accused-appellant that as per prosecution case, forcibly sexual intercourse was made by the accused-appellant with the girl of aged about 12-13 years but no injury was found by the Doctor on her any other part of body. From the medical report and evidence, it reveals that Doctor found injuries on the private part of body of the victim but she did not found any mark of injury on any other part of her body. She was caught hold by the accused-appellant who is elder in age to her. Nobody was near by of place of occurrence, which has taken place in a filed of Sugarcane. If she failed to resist and her cloths were not torned and no injury was found on her body, it will not suggest in the matter that she was not ravished by the accused-appellant. In case 2002 Cr.L.J 2951 State vs. Om Prakash, the apex Court held that on statement of 8 years old girl accused can be held guilty for the offence under Section 376 IPC. Her statement is like an injured witness. Contradictions, discrepancies are not so much material in such cases. In case 1983 SCC Crl. 728 Berwara vs. State, apex Court held that except corroboration from the medical evidence, if available no other corroborating evidence required, if the victim testimony is otherwise believable. It was also a case where the girl of 10- to 12 years was ravished. 11. Name of the accused is there in the prompt FIR. He belongs to the same village where the victim resides. It is day light occurrence. There is no reason of mistake in identification of the accused appellant by her. Learned counsel for the appellant argued that in her on oath statement, she has stated that her mouth was gagged, Cloth was tied on her eyes and hands. He belongs to the same village where the victim resides. It is day light occurrence. There is no reason of mistake in identification of the accused appellant by her. Learned counsel for the appellant argued that in her on oath statement, she has stated that her mouth was gagged, Cloth was tied on her eyes and hands. No such details were given by her in her statement under Section 164 Cr.P.C. as well as no such facts are there in the FIR and also in the statement of the other two witnesses. Leaned counsel for the appellant argued that under the pressure of cross-examination and under the fear that her testimony may be rejected by the court if some exaggeration, embellishment are made by the witness, only due to this cause, her on oath statement for seeing the broad feature of the case cannot be rejected. There is no reason to disagree this argument of the learned AGA . 12. Learned counsel for the appellant claimed that at the time of occurrence, the appellant was minor but no such statement or case was placed on behalf of the accused before the trial court, it is clear from the record. Moreover, in his statement under Section 313 Cr.P.C. the accused has stated her age 20 years. This shows that on the date of occurrence, he was more than 16 years. No attempt was made on behalf of the accused to establish his minority on the date of occurrence of this alleged stage, he cannot be allowed any benefit of this arguments. 13. From the record it is also clear that accused was in position to dominate the will of the prosecutrix who belongs to scheduled caste and after using his that position, he exploited her sexually to which she would not, if otherwise agreed. 14. Two witnesses were also examined on behalf of the accused. She simply said that marriage and Gauna of the prosecutrix had taken place. If her marriage took place in the year, 1991 and Gauna is in the year, 1997, this will not make any effect on the case of the prosecution in the facts and circumstances of the case. 15. Two witnesses were also examined on behalf of the accused. She simply said that marriage and Gauna of the prosecutrix had taken place. If her marriage took place in the year, 1991 and Gauna is in the year, 1997, this will not make any effect on the case of the prosecution in the facts and circumstances of the case. 15. From the above all discussions, and also considering the arguments of both parties counsel and going on through the record, I am of the view that case of the prosecution is fully established against the accused-appellant and he was rightly held guilty for the offences for which he was charged. 16. Learned counsel for the appellant requested from the court for taking some lenient view in the matter. it is a case of rape with a girl of 12 years of age only who also belongs to Sheduled Caste. Already lenient view has been taken by the trial court in awarding sentence. I do not find any ground for any further lenient view in the matter seeing the seriousness and heinousness of the offence. So no further reduction in the sentence is required in the matter. 17. From the above all discussions, Appeal has no force and accordingly, hereby dismissed. Order of the conviction and sentence by the trial court of accused is hereby affirmed. Accused is not present in the court. His bail is hereby cancelled. copy of the order be sent to the trial court for issuing NBW of the accused and after his appearance in the court, he will be sent to jail to serve out, the sentence awarded. Compliance report be sent to this court within two months from the date when the certified copy of this order is placed before the Trial Court. Copy of the judgement be sent to the court concerned forthwith. Appeal Dismissed.