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Allahabad High Court · body

2012 DIGILAW 1709 (ALL)

KUNWAR SEN @ KUNWAR SINGH v. STATE

2012-07-31

MOHD.TAHIR

body2012
Mohd. Tahir J. This criminal appeal has been preferred against the judgment and order dated 20.08.1981 passed by VIth Additional Sessions Judge, Agra in S.T. No. 662 of 1979 ( State Versus Kunwar Sen alias Kunwar Singh) under Section 376 I.P.C., Police Station-Fatehpur Sikari, District-Agra, whereby the trial Court having found the accusedppellant guilty, under Section 376 I.P.C., convicted him and sentenced him thereunder to undergo rigorous imprisonment for five years. 2. The prosecution case as appearing from the first information report Ex.Ka-1 and statement of the prosecutrix ( PW-2) is that the prosecutrix was a minor girl of 12-13 years of age at the time of incident of the case which took place on 20.04.1979 at 2:00 pm in the house of the accusedppellant. The prosecutrix was showering affection to the children in the house of one Beni who happened to be her brother. The house of Beni was situated at a short distance from the house of the accusedppellant. The accusedppellant gave call to the prosecutrix on the pretext that she should help him in removing thorn which stuck in his feet. The prosecutrix with pious intention believing the accusedppellant by his words hurriedly went to the house of the accusedppellant for relieving him from pain of thorn. At that time, the accusedppellant was all alone in his house. As soon as the prosecutrix reached in the portion of his house having tiled roof ( khaprail), he caught hold of her and forcibly took her inside the room where she was laid on the ground. The prosecutrix offered resistance and expressed her unwillingness and tried to raise alarm but the accusedppellant silenced her and gave her threat to kill if she would raise any alarm further. Thereafter the accusedppellant committed rape upon her after pulling her peticot. He thrusted his male organ into her private part. The prosecutrix being the child of tender years felt excessive pain but the accusedppellant over-powered her and actually raped her. She felt unbearable pain and cried loudly which attracted her mother, Smt. Ramshri, witnesses Harish Chand, Prabhu, Usha and others who saw accusedppellant tightening the string of his underwear. At the sight of the witnesses, the accusedppellant ran away from the spot. The witnesses chased him but he could not be apprehended. Thereafter, the mother of the prosecutrix and other witnesses went inside the room and found the prosecutrix in semi-conscious condition. At the sight of the witnesses, the accusedppellant ran away from the spot. The witnesses chased him but he could not be apprehended. Thereafter, the mother of the prosecutrix and other witnesses went inside the room and found the prosecutrix in semi-conscious condition. The blood was oozing out from her private part. She was unable to move herself. So arrangement for the cot was made on which she was taken to her house. The father of the prosecutrix was at Fatehpur Sikri where he was informed. He immediately rushed to his house and thereafter he took the prosecutrix to Police Station-Fatehpur Sikri and lodged a written first information report of the incident. The written report is Ex.Ka-1. 3. On the basis of the above written report a case under Section 376 I.P.C. was registered in Police Station Fatehpur Sikri at Case Crime No. 39 of 1979. In that regard chick F.I.R. Ex.Ka-5 was prepared by H/C Mohd. Smile who made an entry in the general diary also regarding the registration of the case. The copy of the G.D. is Ex.ka-6. 4. H/C Mohd. Smile seized and sealed the peticot of the prosecutrix and prepared seizure memo thereof which is Ex.-ka-7. The peticot of the prosecutrix is material Ex.-1. 5. That peticot was stained with blood, so it was sent to the Chemical Examiner. The report of the Assistant Chemical Examiner is Ex.Ka-12 according to which spots of blood were found on the said peticot. 6. The prosecutrix was medically examined by a lady Dr. Asha Kumari ( PW-3) on 21.04.1979 at 1:00 pm in Loyal Hospital, Agra. The medical report is Ex.Ka-2 which is as here under:- A young girl of average built Height 4.8 1/2" weight-34 kg. Teeth 7+7/7+7. Breast developing. Axilary and pubic hairs-scanty brownish. No Injury present externally. Internal Examination: Vagina full of clots of blood. Hymen torned up with ragged margins. Fresh bleeding seen from edges, slight pereneal laceration present at 6 O'clock position i.e. about cm long and 1/8 cm deep. Duration of injury seems to be within 24 hours. Vaginal smear taken for micro pathological examination. According to supplementary report of the prosecutrix, the following facts were found:- ( i) Vaginal smear report; No spermatozoa seen ( ii) P/S under general anaesthesia shows irregular linear tear in posterior vaginal wall extending upto vault i.e. stitched with great difficulty. I. Wrist joint. Pisiform Bone present. Vaginal smear taken for micro pathological examination. According to supplementary report of the prosecutrix, the following facts were found:- ( i) Vaginal smear report; No spermatozoa seen ( ii) P/S under general anaesthesia shows irregular linear tear in posterior vaginal wall extending upto vault i.e. stitched with great difficulty. I. Wrist joint. Pisiform Bone present. Non union of epiphysis of radius and ulna at lower end with their respective shafts. II. Elbow joint epiphysis of medical epicordyle not fused with the shafts. Conclusion:- ( 1) Her age is between 12-14 years of age. ( 2) No definite opinion about rape can be given. Injury appears to be caused by blunt article. Duration of injury seems to be 12-24 hours. 7. The Investigation of this case was entrusted to S.I. Bharat Ram who went to the spot and prepared the site plan Ex.ka-8 interrogated the witnesses and after completing all other formalities submitted chargesheet against the accusedppellant under Section 376 I.P.C. The chargesheet is Ex.Ka-10. 8. The trial Court framed the charge against the accusedppellant under Section 376 I.P.C. to which accusedppellant pleaded not guilty and claimed to be tried. 9. In support of its case, the prosecution examined eight witnesses in all who are as follows:- PW-1, Bisa, is the first informant who lodged the F.I.R. He is the father of the prosecutrix. PW-2, is the prosecutrix, who is the victim of the crime in question. She in her statement on oath supported the whole prosecution version. PW-3, is Dr. Asha Kumari, who medically examined the prosecutrix and proved her medical examination report. PW-4, is Harish Chand, who was said to have seen the accused appellant tightening the string of his underwear and absconding from the scene of occurrence. This witness did not support the prosecution case and turned hostile. PW-5, Smt. Ramshri is the mother of the prosecutrix. PW-6, Gangadhar, the then Pradhan of the Village is said to have brought the accusedppellant to the police station alongwith the brother of the accused, namely, Than Singh. He proved the written report Ex.Ka-4 which was got written by Than Singh in the village. PW-7, S.I. Bharat Ram, is the Investigating Officer of this case. He has proved the investigation conducted by him and also proved the prosecution papers like chick F.I.R., G.D. regarding the registration of the case, memo of peticot of the prosecutrix, site plan and chargesheet etc. PW-7, S.I. Bharat Ram, is the Investigating Officer of this case. He has proved the investigation conducted by him and also proved the prosecution papers like chick F.I.R., G.D. regarding the registration of the case, memo of peticot of the prosecutrix, site plan and chargesheet etc. PW-8, A.B. Bhanker, is the formal witness, who simply stated that he referred the prosecutrix to the District Hospital, Agra for medical examination after giving necessary treatment. 10. The trial Court examined the accusedppellant under Section 313 Cr.P.C. In his statement the accused denied the prosecution evidence and further stated that he has been falsely implicated in this case due to enmity and that the witnesses have deposed against him due to old enmity and due to being the relatives or the friends of the complainant. 11. The trial court after hearing the arguments of the defence counsel and the State counsel and perusing the evidence on record convicted and sentenced the accusedppellant as mentioning in para 1 above. Hence, this appeal. 12. I have heard learned counsel for the accusedppellant and learned A.G.A. for the State and perused the entire evidence on record. 13. According to the prosecution case, the prosecutrix was minor on the date of incident in question. The lady doctor, PW-3, Asha Kumari medically examined the prosecutrix and in her statement in court proved her medical examination report. According to the lady doctor, the prosecutrix was between 12-14 years of age at the time of the medical examination which was done on the next day of the incident in question. The lady doctor gave cogent reason for her conclusion and she was quite definite that the prosecutrix was below 16 years of age. The father of the prosecutrix lodged the F.I.R. Ex.Ka-1 in which he had shown her age about 10 years. He was examined in the court as PW-1 but on this point he was not cross-examined by the defence counsel. The trial court guessed her age to be 15-16 years only on the date of her statement which was recorded after about two years of the occurrence. Under these circumstances, the trial court has rightly held that the prosecutrix was below 16 years of age and she had not acquired age of consent at the time of occurrence in question. 14. Under these circumstances, the trial court has rightly held that the prosecutrix was below 16 years of age and she had not acquired age of consent at the time of occurrence in question. 14. Learned counsel for the accusedppellant has vehemently contended that the prosecutrix cannot be categorized as a truthful witness because according to medical examination report no definite opinion about rape could be given by the lady doctor and that lady doctor PW-3, Asha Kumari in her statement has stated that the injury on the private part of the prosecutrix could be caused by falling on some hard object and that no spermatozoa was found in the vaginal smear of the prosecutrix which also belies the statement of the prosecutrix. In support of his contention learned counsel for the accusedppellant has placed reliance upon the decision passed by this Court in Kallu alias Rajnath Yadav Versus State of U.P. 2008( 60) ACC 617 and the decision passed by the Hon'ble Apex Court in Krishan Kumar Malik Versus State of Haryana ( 2011) 3 SCC ( Crl) 61. 15. I do not agree with this contention of learned counsel for the accusedppellant because the lady doctor who conducted the medical examination of the prosecutrix is not the eye witness of the occurrence in question so she cannot definitely say that rape was committed upon the prosecutrix. The probability which she has pointed out that the injury to the prosecutrix might be caused by falling on some hard object is not substantiated or supported by any evidence on record. Moreover, the prosecutrix had clearly denied the suggestion that she got this injury on her private part by falling on some hard object. She had clearly stated in her statement on oath that the accusedppellant thrusted her male organ into her private part as a result of which, she felt pain and blood also oozed out from her private part. She clearly refuted the suggestion of the defence counsel that she sustained this injury by falling from some tree or got this injury during the course of playing. She is the victim of the crime in question so her testimony cannot be slightly brushed aside merely on the basis of some probability suggested by the doctor in the cross-examination by the defence counsel. She is the victim of the crime in question so her testimony cannot be slightly brushed aside merely on the basis of some probability suggested by the doctor in the cross-examination by the defence counsel. This very lady doctor, has also stated in her examination-in-chief that this injury to the prosecutrix could be caused by penetration with male organ of some person. It is also notable that in medical examination no external injury was found on other parts of the prosecutrix. Had she fallen down from some tree, she would have received injuries on other parts of her body also. So the opinion of the doctor that the prosecutrix might have got this injury by falling from some tree is baseless and does not fit in within the facts and circumstances of the matter. 16. So far as the question of absence of spermatozoa in the vaginal smear of the prosecutrix is concerned, in this regard, it may be mentioned that the absence of spermatozoa in the vaginal smear is of no consequence because there may be no emission of semen or the emission may take place out side or away from the vagina or the same may be washed away before medical examination. So the absence of the spermatozoa does not in any way adversely affects the testimony of the prosecutrix. The Hon'ble Apex Court in Prithi Chand Versus State of Himachal Pradesh AIR 1989 SC 702 has held that mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case. According to explanation to Section 375 I.P.C. penetration is sufficient to constitute the offence of rape which is very well proved from the statement of the prosecutrix and the medical evidence. The prosecutrix has clearly stated in her statement that the accusedppellant forcibly committed rape upon her by thrusting his male organ into her private part. The lady doctor has stated that the injury in the private part of the prosecutix could be caused by penetration of male organ of some person. 17. It is also pertinent to mention that the testimony of a victim of sexual offence is entitled to great weight because in Indian society no self-respecting girl or woman would level a fasle charge of rape against anyone by staking her own honour. 17. It is also pertinent to mention that the testimony of a victim of sexual offence is entitled to great weight because in Indian society no self-respecting girl or woman would level a fasle charge of rape against anyone by staking her own honour. In the present case the testimony of the prosecutix is cogent and the same is fully corroborated by the medical evidence. Her testimony is further corroborated by the first information report Ex.Ka-1 and by the memo of her blood stained peticot Ex.Ka-7 and its chemical examination report Ex.Ka-12. She successfully stood the test of cross-examination and her testimony is fully inconsonance with the facts and circumstances of the case. Hence, I find no infirmity or improbability in her testimony. In any considered opinion she is a truthful witness and the lower Court committed no mistake in relying her testimony. The rulings cited by the learned counsel for the accusedppellant are distinguishable on facts and circumstances of the matter so they are of no help to the accusedppellant. 18. Learned counsel for the accusedppellant has also submitted that the accusedppellant has been falsely implicated in this case due to enmity and the fact of enmity has been admitted by PW-5, Ramshri who is the mother of the prosecutrix. I find no force in this contention also because PW-5 Ramshri, when asked by the Court she could not disclose the reason of enmity and thereafter no cross-examination was directed to discover the reason of enmity. Moreover, she had clearly refuted the suggestion of the defence counsel that the accusedppellant has been falsely implicated in this case due to enmity. In this reference it is also pertinent to mention that it is highly improbable that some person would take revenge from his enemy by levelling false charge of rape about his own daughter because such charge adversely affects the reputation of his family also and it becomes difficult for him to find a suitable groom for his unmarried daughter. So by all stretch of imagination, I find no motive or probability of false implication of accusedppellant in this case. 19. Learned counsel for the accusedppellant has submitted that it is highly improbable that the accusedppellant had committed rape upon the prosecutrix by keeping her door opened. So by all stretch of imagination, I find no motive or probability of false implication of accusedppellant in this case. 19. Learned counsel for the accusedppellant has submitted that it is highly improbable that the accusedppellant had committed rape upon the prosecutrix by keeping her door opened. There is no substance in this contention also because the prosecutrix in her statement had stated that at the time of occurrence in question, the wife of the accusedppellant was not at his house and that the accusedppellant was all alone in his house. In para 19 of her statement, she had simply stated that when her mother reached there at that time, the door wasin open condition. She, nowhere, in her statement has stated that at the time of actual commission of the crime the door of the room was in open condition. 20. The learned counsel for the accusedppellant switched over to next submission that the Investigating Officer did not take the blood-stained and plain earth from the place of occurrence so the prosecution has failed to establish the place of occurrence and on this ground the testimony of the prosecutrix is liable to be discarded. This contention also has no force in itself because the prosecutrix, PW-2, in her statement has clearly stated that as a result of penetration of male organ of the accusedppellant, blood had oozed out from her private part and her mother and other witnesses came there on her cries and screams. The mother of the prosecutrix, PW-5, in para seven of her statement has stated that she saw the blood lying in the house of the accusedppellant. The Investigating Officer, PW-7, has also stated in his statement that he saw the blood lying on the spot and in that regard he made a mention in his inspection note. He further stated that he had not taken the blood into his possession because the memo of the blood stained peticot of the prosecutrix was made available to him on the spot itself. This explanation of the Investigating Officer for not taking the blood stained and plain earth into his possession from the spot does not appear to be satisfactory. However, it does not cast any adverse effect on the testimony of the prosecutrix. The ruling of the Hon'ble Apex Court State of Punjab Versus Gurmit Singh, 1996 CRLJ 1728 may be referred to in this regard. However, it does not cast any adverse effect on the testimony of the prosecutrix. The ruling of the Hon'ble Apex Court State of Punjab Versus Gurmit Singh, 1996 CRLJ 1728 may be referred to in this regard. In this ruling the Hon'ble Apex Court has held that any lapse or negligence on the part of the Investigating Officer in the investigation cannot be a ground to discredit the testimony of the prosecutrix. 21. For the foregoing reasons, I am of the opinion that the prosecution case is fully proved and the trial Court has committed no illegality in convicting and sentencing the accusedppellant. The appeal has no merit and is liable to be dismissed. 22. Consequently, the appeal is dismissed. The conviction and sentence recorded by the trial Court against the accusedppellant Kunwar Sen are affirmed. The accusedppellant is on bail, he shall be taken into custody by the trial Court concerned and he shall be sent to jail to serve out the remaining sentence. After sending the accusedppellant to jail his sureties and surety bonds shall stand discharged. The office is directed to return the lower Court record expeditiously along with a copy of this judgment for necessary action. Compliance report be sent by the trial Court concerned within two months.