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2010 DIGILAW 961 (ALL)

Lok Mal alias Loku v. State of U. P.

2010-03-22

YOGENDRA KUMAR SANGAL

body2010
Yogendra Kumar Sangal,J.:- This appeal has been filed against the judgment and order dated 13.08.1986 passed by Sri S.P. Misra, 3rd Additional Sessions Judge, Rae Barelly in S.T. No. 70/1986 State vs. Lokmal alias Loku under Section 376, 323, 504 and 506 IPC arising out of crime No. 137/1984 police station Kotwali, District Rae Barelly. By the impugned judgment and order, learned Sessions Judge held guilty to the accused appellant for the offence under Section 376, 323 IPC and sentenced him to undergo R.I. for a term of 5 years and 6 months respectively. Both these sentences are to run concurrently. 2. In brief, the prosecution case is as follows:- On 20.03.1984 at about 11.35 P.M. prosecutrix lodged a written report at police station that she is student of B.A. Part-I and also in part time she is tutor of the niece and daughter of accused Lokmal who resides in the locality where she also resides. On 19.03.1984 at about 9.30 A.M. as usual she had gone for tutoring the girls at the house of the accused. When she was busy in her work in the room of first floor of the house, accused entered in the room. Out of two girls one went to bathroom and other was sent by the accused for bringing water for him. After going both the girls, accused closed the door from inside and pushed her on the bed with a bad intention. She tried to raise alarm but with the piece of cloth her mouth was gagged. He put off her "Salwar" and made her naked. When she again tried for her rescue again she was taken by him in his grip and he started committing rape with her. In the meantime, when the girls came and they knocked the door, he did not open the door and went on to ravish her with a threat that if she raised alarm or she will open her mouth about the incident before anyone, he will kill her. Both these girls brought their grand-mother there and on whose call he opened the door and escaped from there. The grand-mother of the girls brought her on the ground floor. On her hue and cry many persons of Mohalla and accused family assembled there. Both these girls brought their grand-mother there and on whose call he opened the door and escaped from there. The grand-mother of the girls brought her on the ground floor. On her hue and cry many persons of Mohalla and accused family assembled there. She was taken away to her own house by her uncle Nand Kishore where she had given the details of the incident to her mother and uncle. When they tried to go for lodging the report inhabitants of the Mahalla and family members of the accused threatened them to face the consequences, if the matter is reported to the police. Later on, a written report was submitted at police station by the prosecutrix and a case under Section, 376, 323, 504 and 506 IPC was registered against the accused. Investigation of the case was started by the police. After conclusion of the investigation, charge-sheet was submitted against the accused in the court. 3. As the case under Section 376 IPC was exclusively triable by the court of session so after taking cognizance in the matter, learned Magistrate has committed the case to the court of session. Charges under Section 376, 323, 506 IPC were framed against the accused but he pleaded not guilty and claimed his trial. 4. In support of its case, prosecution examined PW-1 prosecutrix; PW-2 Smt. Dada Bai (mother of the accused); PW-3 Kumari Sangeeta was niece of the accused; PW-4 Dr. Daya Chaturvedi; PW-5 Head Constable Kishan Niwas Tiwari; PW-6 Chhote Lal Choudhary; PW-7 Kesav Ram Verma Investigating Officer of the case and PW-8 Smt. Asha Devi Head Constable of police station concerned. Witnesses have proved material exhibited as Ex.Ka-1 to Ex.Ka-8 respectively. 5. In his statement under Section 313 Cr.P.C. accused had denied the correctness of the prosecution case and evidence and he claimed his false implication due to enmity with the prosecutrix. No evidence in defence was adduced on his behalf. 6. After hearing the arguments of learned counsel for the accused and counsel for the State and perusing the record, learned trial court by impugned judgment and order held guilty to the accused and sentenced him accordingly as above. 7. No evidence in defence was adduced on his behalf. 6. After hearing the arguments of learned counsel for the accused and counsel for the State and perusing the record, learned trial court by impugned judgment and order held guilty to the accused and sentenced him accordingly as above. 7. Aggrieved by the impugned judgment and order, this appeal has been filed by the accused challenging the findings of the learned trial court mainly on the ground that there is inordinate delay in lodging the FIR and no independent witness came forward to support on oath version of the prosecutrix; mother and maternal uncle to whom she had stated details of incident after occurrence were also not examined; story given by the prosecutrix is improbable; medical evidence does not support the of the prosecution evidence but belies the story given by the prosecutrix; injuries found on the body of the prosecutrix were superficial in nature can easily be manufactured; sole testimony of prosecutrix does not inspire confidence and no reliance can be placed on her statement; appellant has been falsely implicated in this case due to enmity; learned trial court has not given detailed and sufficient reason holding him guilty and awarding him sentence and judgment and order of the learned trial court is unjust, illegal and improper. 8. Learned AGA has controverted the argument of the learned counsel for the appellant and submitted that prosecution has clearly established the guilt of accused and no exception can be taken to the reason indicated by the learned trial court under the well reasoned judgment. The evidence has also been analyzed in detail by the learned trial court. No cause has been shown why the accused-appellant has been falsely implicated in this case and no question of any interference is called with the order of conviction recorded by the impugned judgment by the learned trial court. 9. After hearing the learned counsel for the appellant and learned AGA for the State, I have perused the record of trial court and this Court. 100. PW-1 is a prosecutrix of the case. She is undisputedly a major lady of 19 years of age and she had claimed herself resident of the same locality where accused resides. She claimed the situation of her house at 200 steps from the house of the accused. 100. PW-1 is a prosecutrix of the case. She is undisputedly a major lady of 19 years of age and she had claimed herself resident of the same locality where accused resides. She claimed the situation of her house at 200 steps from the house of the accused. She had claimed that she was ravished by the accused appellant on the date, time and place given in the FIR and it is not a case of the accused-appellant that she was consenting party in the matter and sexual intercourse took place with her consent. In her oath statement in cross-examination by the learned counsel for accused, she had given all details how she was ravished by the accused. She is not a minor girl and also not illiterate lady. She was studying in B.A. Part-I at the time of the occurrence. Certainly it shall be presumed that she knows pros and cons what she is stating in her oath statement in the court. Before falsely implicating the accused in such type of offence, it must be in her knowledge that everybody will know what happened with her. She was an unmarried till that time. After lodging the report by her at police station and giving statement in the court, it must be in her knowledge that she may loose love and affection of her own family members and she will be seem in the society and locality where she resides with suspicious eyes. There may be some problem in her marriage. It was claimed by her that she was earning money by tutoring the girls of the family of the accused and she will loose her income by involving the appellant in such matter. After taking such risk without any incident with her (as reported by her) she will dare to falsely involve the appellant, it is neither probable nor natural. Why she had falsely involved the appellant, replied by the learned counsel that her mother was a lady of loose character and when her suspicious activities were being checked and objected by the locality persons including the appellant she got involved the appellant through her girl in this false case. Why she had falsely involved the appellant, replied by the learned counsel that her mother was a lady of loose character and when her suspicious activities were being checked and objected by the locality persons including the appellant she got involved the appellant through her girl in this false case. It is again highly, unnatural and improbable that a mother will instigate her marriageable age daughter to lodge such false report and give on oath statement in the court and the major girl will also act on her such instigation taking risk of her future life and character. If the persons of locality including the appellant were objecting the activities of the mother of prosecutrix, why they have chosen him as target and lodged the false report although appellant and his family was bread winner of their family, it is also not sufficiently explained on behalf of accused. 11. Learned counsel for the appellant argued that there is inordinate delay of 26 hours in lodging the report. Learned AGA replied that sufficient explanation of this delay was given in the FIR itself that both the ladies were threatened by the family members and persons of the locality to face the consequences if report is lodged, so there is delay in lodging the FIR. Mother of the prosecutrix was abandoned by her husband with three children including the prosecutrix. She has to live in the same locality without the help of her husband with her children. If she does not follow the directions of the family members of accused and locality persons as accused belongs to "Sindhi Caste" and locality is in the majority of Sindhi Caste persons she has to face the consequences. Possibility cannot be ruled out that in case of not following the direction she may be forced to leave the locality. There may be problem with her to maintain the family as the basis to meet out the need of the family was upon the income of prosecutrix and her mother. Her mother works in the houses of locality to clean the utensils. We can imagine their status and courage to go against the wishes of the persons of the locality who assembled there and threatened to face the consequences, if the matter is reported to the police. Her mother works in the houses of locality to clean the utensils. We can imagine their status and courage to go against the wishes of the persons of the locality who assembled there and threatened to face the consequences, if the matter is reported to the police. In these circumstances, if there is little delay in lodging the FIR and they both have taken time to think to lodge the FIR it is of no consequence in the facts and circumstances of the case. Learned AGA has cited law Sri Narayan Saha and another vs. State of Tripura, reported in 2005 SCC (Cri) 410 : 2004 (3) ACR 2714 (SC) where Hon'ble Apex Court held that delay in lodging the FIR in offence under Section 376 IPC does not necessarily indicates that the version of the victim is false. 12. Learned counsel for the appellant pressed that no person of the locality came forward to support the case of the prosecution, this also create doubt on the correctness of the prosecution case. It is in the evidence of the prosecution that where this occurrence took place it is the house of the accused appellant. One cannot expect that any member of the family of the appellant will come forward to give evidence on oath in such matter against the appellant. Three witnesses from the family of the appellant were cited as witnesses in the charge-sheet against the accused. One is mother of the appellant and rest two are the girls who are nieces of the appellant. Out of them PW-2 Smt. Dada Bai (mother of the appellant) and Kumari Sangeeta (niece of the appellant) were examined on behalf of the prosecution but they both have not supported the prosecution case and they were declared hostile. One is mother of the appellant and rest two are the girls who are nieces of the appellant. Out of them PW-2 Smt. Dada Bai (mother of the appellant) and Kumari Sangeeta (niece of the appellant) were examined on behalf of the prosecution but they both have not supported the prosecution case and they were declared hostile. My attention was drawn by the learned AGA on the statement of PW-2 where in her examination-in-chief, when it was inquired from this lady by State counsel in examination-in-chief she had given following answer "Mujhe Nahi Pata Ki Meine Upper Ke Kameray Ka Darwaja Khulwaya Or Kameray Se Lokmal Nikal Kar Bhaga" Learned AGA argued that story of the prosecution is that when the two girls knocked the door which was closed from inside by the appellant and at that time he was committing rape then the girls bring their grand-mother and she forced the appellant to open the door; only then appellant opened the door and succeeded in escaping from there. Learned AGA further argued that this type of answer was given by this lady shows that she is avoiding to answers correctly as the accused appellant is her son. If no such occurrence would have been taken place she should have answered that no such occurrence as inquired by the prosecution counsel has taken place and her answer should not have been in such manner. In her own oath statement, this lady had conceded that neither the prosecutrix nor her mother are at enmical terms with her and there is no quarrel between the two families. Accused has claimed that he was falsely implicated in this case due to enmity; except discussed above what was his enmity either with the prosecutrix or with her family including her mother it is nowhere shown or explained on behalf of the accused. It is also on record that the locality in which the accused resides majority of the residents was "Sindhis" and appellant is also "Sindhi". Learned AGA further argued that possibility cannot be ruled out that as all the residents of the locality belongs to the same caste so no one came forward to support the case of the prosecution. This argument of the learned AGA in the facts and circumstances of the case cannot be said without force. 13. Learned AGA further argued that possibility cannot be ruled out that as all the residents of the locality belongs to the same caste so no one came forward to support the case of the prosecution. This argument of the learned AGA in the facts and circumstances of the case cannot be said without force. 13. It was further pressed on behalf of the accused appellant that as per own version of the prosecutrix after occurrence, she had stated about the incident to her mother and her maternal uncle but they both were also not examined on behalf of the prosecution to support in her on oath version. Learned AGA replied that name of both these witnesses are given in the charge-sheet. Their statements were recorded under Section 161 Cr.P.C. also by the I.O. They have supported the prosecution case in their statement under Section 161 Cr.P.C. For the reasons best known to the prosecutor in trial court they were not examined. If both of them were not examined, treating them important witnesses, trial court was free to record their statement under Section 311 Cr.P.C. The prosecutrix cannot be blamed for their non examination. It was further argued by him that it is established law that finding of guilt in a case of rape can be based on the uncorroborated evidence of the prosecutrix. The very nature of the offence makes it difficult to get direct corroborating evidence. The evidence of prosecutrix should not be rejected on the basis that no one was examined to corroborate her statement. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted even if it is uncorroborated, unless the material on record requires drawing of an interference that there was consent or that the entire incident was improbable or imaginary. 14. Learned counsel for the appellant also pressed that from the statement of the doctor it is clear that prosecutrix was found habitual of sexual intercourse and her vagina admits two finger easily. Her hyman was found torned and there was no injury of her private part. Showing all this learned counsel for the appellant argued that medical evidence also does not support the commission of forcibly sexual intercourse with the prosecutrix. Her hyman was found torned and there was no injury of her private part. Showing all this learned counsel for the appellant argued that medical evidence also does not support the commission of forcibly sexual intercourse with the prosecutrix. In reply to this, learned AGA argued that she may be habitual of sexual intercourse as said by the doctor but this does not permit to the appellant to have sexual intercourse with her forcibly without her consent. He cited law (2008) 2 SCC (Cri) 253 : 2007 (3) ACR 3186 (SC) B.C. Deva alias Dyava vs. State of Karnataka. Hon'ble Supreme Court had laid down that if medical examination of prosecutrix not disclosing evidence of sexual intercourse; no injuries marks on accused or prosecutrix; oral testimony of prosecutrix found cogent, reliable, convincing and trustworthy has to be accepted in the trial of the accused for the offence under Section 376 IPC and no interference with conviction is called for. In another case reported in 2005 SCC (Cri) 410 : 2004 (3) ACR 2714 (SC)Sri Narayan Saha and others (supra); the Hon'ble Apex Court held that if the victim does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence in case under Section 376 IPC. 15. Prosecutrix had given all details how the rape was committed with her by the accused. In her cross-examination, no unnaturality and improbability shown in her oath statement on behalf of the accused. During the course of medical examination, injuries were found by the doctor on her face neck etc. It may be correct that no injury was on her private part. It is not always necessary that there should be injury in committing rape on her private part. Learned trial court has observed that when the prosecutrix gone at police station for the purpose of lodging the FIR, she made complaint of pain in her private part and thig which is a natural consequence of such type of offence. It is correct that doctor has not reported such injuries but it is stated by the doctor in her oath statement they do not inquire about such type of injuries and only what injuries they found on the body of the victim they make note of them in the report. It is correct that doctor has not reported such injuries but it is stated by the doctor in her oath statement they do not inquire about such type of injuries and only what injuries they found on the body of the victim they make note of them in the report. There was a difference of the age between the prosecutrix and appellant about more than 10 years. She was in grip of the accused. She was also in the house of the accused at that time. It was in her knowledge that no one may come for her help on her hue and cry. It is correct that no injury or abrasion was found by the doctor on her breast but in judgment of trial court, it is there that she was wearing "Kurta" at that time and her breast were covered by the cloth so possibility of abrasions on the breast was not there. Accused was from the family which was bread winner of the family of the prosecutrix. If in the circumstances of the case, she has surrendered herself to the lust of the accused and no injury was found on her private part, this will not affect the merit of the case. It is well settled that absence of injuries on the private part of the victim will not by itself falsified the case of rape nor construed the evidence of consent. The opinion of doctor that there was no evidence of sexual intercourse or rape may not be sufficient to disbelieve the acquisition of rape by the victim. Abrasions and scratches on the body of victim specially on the forearm, wrist, face, etc., are indicative of struggle and will support the allegation of sexual assault. 16. Learned AGA further argued that if false case of rape was to be framed against the accused due to certain enmity with him either with the prosecutrix or her mother, it was more easy for both of them to chose a place of occurrence where the witnesses of their choice may be available. They will chose for this purpose the house of the accused where they knows that certainly no witness will be available to them it is not possible and probable. This argument of learned AGA is also not without force. 17. They will chose for this purpose the house of the accused where they knows that certainly no witness will be available to them it is not possible and probable. This argument of learned AGA is also not without force. 17. Certain contradictions and minor discrepancies were brought in the notice of the Court by the learned counsel for the appellant. We have to see that the statement of the prosecutrix was recorded in the Court after three years of the occurrence. After lapse of time such type of discrepancies and contradictions are natural. If these are not there witness can be blamed that he was tutored witness. Only broad feature of the case are to be seen. My attention was drawn that in examination-in-chief firstly she said that rape was committed in the southern room of the first floor but later on, she has stated that it took place in northern room of the first floor. Earlier she has not stated that she was tutor of the daughter of appellant but later on she had developed this also that she used to give tuition to the daughter of the appellant also. No major contradictions and discrepancies was shown in her statement. Such type of discrepancies are natural and normal and are result of lapse of time. In the same breath in examination-in-chief itself she had clarified her earlier statement that occurrence took place in southern room by saying that it took place in the northern room of first floor. It is clear that as per her case rape was committed at the first floor of the house of the appellant and there are only two rooms and her statement was recorded after three years of the occurrence. As the daughter of the appellant was not being taught on that day by her so she has not named her she had explained this lapse in this way. As per defence case, she never visited the house of the accused nor she is the tutor of the girl of the family of the appellant. She was unknown to them. How she knows the name of the girl of the family of the appellant and also in which class they are reading it is not explained. As per defence case, she never visited the house of the accused nor she is the tutor of the girl of the family of the appellant. She was unknown to them. How she knows the name of the girl of the family of the appellant and also in which class they are reading it is not explained. She had given inside detail of the house of the accused in her oath statement which found corroboration from the statement of PW-2 who is mother of the appellant. If she had not visited the house of the appellant how she knows the detail of the rooms of the house, it is not clear. What was the enmity of the prosecutrix and her mother with the appellant, it is also not sufficiently explained. His mother does not know about such type of enmity and annoyance. No person was examined on behalf of the accused of the locality that she does not live their and her mother is a lady of bad character. 18. Learned counsel for the appellant cited case law in support of his argument 2003 SCC (Cri) 596 : 2003 (1) ACR 537 (SC) Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. & another. In this case, trial court has convicted the accused appellant for the offence of rape. High Court in appeal has acquitted him. In appeal before the Hon'ble Supreme Court, the Court refused to interfere in the judgment of the High Court acquitting the accused relying on the principle that if two views are possible, view favourable to the accused should be adopted. Facts of this case are totally different from the facts of the present case. Another case cited (2008) 2 SCC (Cri) 207 and Radhy vs. State of M.P. and 2002 (1) JIC 162 : 2001 (3) ACR 2697 (SC) Dilip & Anr. vs. State of M.P. Facts of these two cases are totally different from the facts of the present case. In these cases also testimony of the prosecutrix was not found trustworthy so without corroboration the same was not accepted. 19. In rebuttal to these rulings learned AGA has relied on the law laid down by the Hon'ble Apex Court in State vs. Gurmeet reported in AIR 1996 Supreme Court 1393. In these cases also testimony of the prosecutrix was not found trustworthy so without corroboration the same was not accepted. 19. In rebuttal to these rulings learned AGA has relied on the law laid down by the Hon'ble Apex Court in State vs. Gurmeet reported in AIR 1996 Supreme Court 1393. In this case, it was found that prosecutrix was promiscuous in her sexual behaviour earlier even then she has a right to refuse to submit herself to sexual intercourse to any one and every one because she is not a vulnerable object for being sexually assaulted by any or every one. Unless there are compelling reason which necessitates looking for corroboration of her statement, the Court find no difficulty in acting on the testimony of a victim of a sexual assault alone to convict an accused when her testimony inspire confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same as a rule amounts adding insult to injury. In another case AIR 1999 Supreme Court 3916 reported in State vs. Lekhraj. Hon'ble Apex Court held that if the prosecutrix is found to be truthful witness in her deposition no further corroboration may be insisted. Corroboration is admittedly by only a rule of prudence. 20. A judgment in a criminal case depends on the facts of that particular case and it cannot be judgment in rem but it is always a judgment in personam. In Rakesh vs. State 2003 (1) All (Cri) 145 : 2003 (2) ACR 989, this Court held that criminal law dependent on the facts. Fact of two cases cannot be identical or similar, no decision can be binding on facts of other case. 21. From the above discussions, it is clear that there was sufficient evidence on record to hold guilty to the accused-appellant for the offences under Section 376, 323 IPC. Learned trial court has given detailed and sufficient reason in arriving at a finding that charges leveled against the accused appellant under Section 376 and 323 is established beyond reasonable doubt. I am also of the same opinion in the facts and circumstances of the case and I do not find any reason to interfere in the finding of conviction of the trial court of the accused appellant. I am also of the same opinion in the facts and circumstances of the case and I do not find any reason to interfere in the finding of conviction of the trial court of the accused appellant. Already learned trial court has taken lenient view in sentencing the accused appellant for the offences under section for which he was convicted. Appeal has no force liable to be dismissed accordingly. 22. Appeal is hereby dismissed. Finding of conviction and sentence of trial court are confirmed. Accused is on bail. He is not present today. His personal bonds and sureties are hereby cancelled. Record be sent to the trial court forthwith. After receipt of the record, learned trial court will get prepared the warrant of the accused for the sentence awarded and take all necessary steps for the arrest of the accused appellant and to sent him to jail to serve out the sentence awarded. Compliance report be submitted within two months.