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2012 DIGILAW 626 (UTT)

Rajendra v. State of U. P.

2012-09-28

PRAFULLA C.PANT

body2012
Judgment : Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 31.03.2000/ 03.04.2000, passed by learned Additional Sessions Judge, Dehradun, in Sessions Trial No. 80 of 1999, whereby said court has convicted accused/ appellants Rajendra, Pappu @ Hanuman, Sushil Kumar and Kishan under section 376(2)(g) IPC, and each one of them has been sentenced to rigorous imprisonment for a period of ten years, and directed to pay fine of 5,000/- In default of payment of fine, the defaulter convict is directed to undergo simple imprisonment for a period of six months. The amount realised as fine has been directed to be paid to victim Sugna Devi. The accused/appellants are further convicted under section 506 IPC, and each one of them has been sentenced to rigorous imprisonment for a period of six months on that count. 2. Heard learned Amicus Curiae for the appellants, and learned counsel for the State and perused the lower court record. 3. Prosecution story in brief is that P.W.1 Smt. Sugna Devi (victim) gave written report (Ex. A1) to the Senior Superintendent of Police, Dehradun, on 31.07.1998, stating that on 07.04.1998, when she was returning from market, on her way to her home, four accused/appellants namely Rajendra, Pappu @ Hanuman, Sushil Kumar and Kishan met her at about 7:30 p.m., in Sanjay Colony. It is further alleged by her that the accused closed her mouth and eyes with black handkerchief, and took her to nearby plot and committed rape on her turn by turn. It is also stated in the first information report (Ex. A1) that the accused kept on threatening her, as such she could not make complaint earlier. She has also mentioned in the first information report that one of the accused namely Rajendra is brother of Rajkumar (Member of Ward No. 8), as such after registering the case she should also be provided protection. On the basis of said report (Ex. A1) given to the Senior Superintendent of Police, Dehradun, it appears that crime no. 315 of 1998, was registered at police station Dalanwala, relating to offences punishable under section 376, 506, 427 IPC, against four accused namely Rajendra, Pappu @ Hanuman, Sushil Kumar and Kishan . On the basis of said report (Ex. A1) given to the Senior Superintendent of Police, Dehradun, it appears that crime no. 315 of 1998, was registered at police station Dalanwala, relating to offences punishable under section 376, 506, 427 IPC, against four accused namely Rajendra, Pappu @ Hanuman, Sushil Kumar and Kishan . Investigation was taken up by P.W.2 Sub Inspector G.S. Verma who interrogated the witnesses, inspected the spot, prepared site plan, and after completion of investigation submitted charge sheet (Ex. A3) against four accused namely Rajendra, Pappu @ Hanuman, Sushil Kumar and Kishan for their trial in respect of charge offences punishable under section 376, 427, 506 IPC. 4. The Additional Chief Judicial Magistrate, Dehradun, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for their trial. Learned Additional Sessions Judge, Dehradun, on 27.10.1999, after hearing the parties framed charge of offences punishable under section 376(2)(g), 427, 506 IPC, to which all the four accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Sugna (victim) and P.W.2 Sub Inspector G.S. Verma. 5. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they pleaded that they have been falsely implicated due to enmity. In defence D.W.1 Ram Das (brother-in-law of the victim) was got examined. After hearing the parties, the trial court found that the prosecution has successfully proved charge of offences punishable under section 376(2)(g) and 506 IPC, and convicted all the four accused accordingly. However, no offence is said to have been made out relating to offence punishable under section 427 IPC, and all the four accused were acquitted of said charge. After hearing on sentence, each one of the convicts namely Rajendra, Pappu @ Hanuman, Sushil Kumar and Kishan was sentenced to rigorous imprisonment for a period of ten years, and directed to pay fine of ` 5,000/-. It is further directed that the amount realised shall be paid to the victim. It is further directed by the trial court that in case of default in payment of fine the defaulter convict shall undergo simple imprisonment for a period of six months. It is further directed that the amount realised shall be paid to the victim. It is further directed by the trial court that in case of default in payment of fine the defaulter convict shall undergo simple imprisonment for a period of six months. It is further directed by the trial court that each of the convicts shall also undergo rigorous imprisonment for a period of six months under section 506 IPC. Aggrieved by said judgment and order dated 31.03.2000/03.04.2000, this appeal was preferred by the convicts before Allahabad High Court from where it is received by transfer under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. Notices were sent to the appellants, after transfer and the same were served personally on them. 6. Though, it is a strange case in which the victim was not got medically examined, nor anyone except the victim was got examined as a witness of fact, but still the quality of testimony given by the victim, was such that the trial court has held that the prosecution has successfully proved charge of gang rape as well as that of criminal intimidation. 7. It is pertinent to mention here that the victim (P.W.1 Smt. Sugna) is a married woman and first information report has been lodged after a lapse of more than three months. In the circumstances, her medical examination would not have helped the prosecution in this case as such woman must had been used to sexual intercourse, and her hymen must have been a torned one. Abrasion etc., external injury, if any as suffered by her must have been healed by the time the crime was registered. 8. Learned Amicus Curiae on behalf of the appellants submitted that the first information report is highly belated one, and in the circumstances the testimony of P.W.1 Sugna should not have been believed by the trial court. It is settled principle of law that delaying in lodging first information report is material only when there is no explanation for lodging first information report earlier. In this connection, it is relevant to examine the statement of P.W.1 Smt. Sugna to come to the conclusion if the delay stands explained or not. 9. It is settled principle of law that delaying in lodging first information report is material only when there is no explanation for lodging first information report earlier. In this connection, it is relevant to examine the statement of P.W.1 Smt. Sugna to come to the conclusion if the delay stands explained or not. 9. P.W.1 Smt. Sugna has stated that on 07.04.1998, after doing her job in a house, she had gone to market, and she was returning in the evening on her way back to home. At about 7:30 p.m., near ration shop of Pradhan four accused namely Rajendra, Pappu @ Hanuman, Sushil Kumar and Kishan who are residents of the same locality met her. She further states that Kishan closed her mouth with a black handkerchief, and accused Sushil and Pappu @ Hanuman picked her up and held her legs. All the four accused thereafter took her to a nearby room belonging to accused Rajendra. While recording statement of P.W.1 Sugna at this stage the trial court which was recording the proceedings in camera observed that the witness started broke down, sobbed and started weeping. The trial court further observes that she was consoled, and only thereafter the statement could be recorded further. The lower court record shows that after the above observation P.W.1 Sugna again started making her statement, and she told that after taking her to the room of Rajendra her SAREE was untied by the accused, she was grounded, her petticoat was lifted, and thereafter one after another all the four accused committed rape on her. The witness further narrated that it was Rajendra who first committed rape on her. She further told that after commission of rape all the four accused threatened her of dire consequences if the matter is reported to anyone. In the next para the witness states that she is an illiterate lady. Shocked victim states that she could not even dare to tell story to her husband. P.W.1 Smt. Sugna further states that even after the incident accused persons kept on threatening her. It is only after they (accused) threatened to pick her up once again she mustered courage to get her report (Ex. A1) scribed through a woman. 10. In her cross-examination P.W.1 Sugna denied that she had any quarrel or any enmity with the accused. P.W.1 Smt. Sugna further states that even after the incident accused persons kept on threatening her. It is only after they (accused) threatened to pick her up once again she mustered courage to get her report (Ex. A1) scribed through a woman. 10. In her cross-examination P.W.1 Sugna denied that she had any quarrel or any enmity with the accused. She further told in her cross-examination that in getting lodged the first information report she took assistance of one unknown woman, one Jagjit Singh and one social worker Rais Fatima of the same locality. P.W.1 Sugna in her cross-examination further told that because of fear of her husband she could not disclose about the ghastly incident suffered by her, and for the first time the story was narrated by her to Rais Fatima. As to the oral description of room where she was taken by the accused, she told that there was some fodder kept in that room. 11. P.W.2 Sub Inspector G.S. Verma, Investigating Officer has proved the site plan (Ex. A2) prepared by him after inspecting the spot. From said site plan it is clear that the victim was picked up from point B and raped in a room (which was a tin shed) at point A. The site plan corroborates the description made by the victim as to the place from where she was picked up and the room in which she was subjected to rape. 12. Mr. Ahrar Baig, learned Amicus Curiae submitted that there is no corroboration of evidence of the witness from any other evidence on record, as such it can not be said that charge of offence punishable under section 376(2)(g) IPC, or one punishable under section 506 IPC, is proved beyond reasonable doubt against the accused/appellants. However, this Court is unable to agree with the submission of learned Amicus Curiae. The nature of crime, and the manner in which it was committed, is such that there could have been no other witness except the victim herself. I agree with learned trial court that the conviction in the cases of gang rape can be founded only on the basis of the testimony of the victim provided the same inspires confidence as held by Hon'ble the Apex Court in State of Orissa vs. Damburu Naiko & another, 1992 SCC (Cri) 400. I agree with learned trial court that the conviction in the cases of gang rape can be founded only on the basis of the testimony of the victim provided the same inspires confidence as held by Hon'ble the Apex Court in State of Orissa vs. Damburu Naiko & another, 1992 SCC (Cri) 400. In the present case, in the opinion of this Court the evidence given by the witness (P.W.1) is natural, trustworthy and there is nothing on the record which creates reasonable doubt in her statement. She has fully explained as to why first information report could not be lodged immediately after the incident. She is a woman who appears to have been doing job of cleaning utensils. Accused were known to her. She had no difficulty in identifying them. She had no enmity with them. It has also come in her statement that there was bulb lightening in the tin shed where she was raped. 13. As to the statement of D.W.1 Ram Das, it is sufficient to mention here that he has admitted in the cross-examination that he lives separately from his brother with whom he had no cordial relations, as such his statement that no such incident took place carries little weight to doubt the prosecution story. 14. For the reasons as discussed above, this Court finds no force in this appeal which is liable to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and order dated 31.03.2000/ 03.04.2000, passed by learned Additional Sessions Judge, Dehradun, in Sessions Trial No. 80 of 1999, convicting the accused/ appellants Rajendra S/o Chiranji Lal Pasi, Pappu @ Hanuman S/o Prem Das Jatav, Sushil Kumar S/o Vijay Singh Gorkha and Kishan S/o Bril Lal Pasi under section 376(2)(g) and 506 IPC, is hereby affirmed. The sentence awarded by the trial court is also affirmed. Accused/appellants are on bail. Their bail is cancelled. They shall serve out the remaining part of the sentence awarded by the trial court. The lower court record be sent back to make the accused/appellants serve out the sentence as directed above.