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2013 DIGILAW 311 (UTT)

MANOJ @ TIGER v. STATE OF UTTARAKHAND

2013-06-11

SUDHANSHU DHULIA

body2013
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of the I.P.C. By an amendment in the IPC, Section 228A has been inserted vide Act No.43 of 1983, in order that the identity of the alleged victims of the offence under Section 376 I.P.C. may not be disclosed. 2. Although, printing and publication in law general may not be strictly included in the definition of printing and publication in the above provision for which there are pronouncements by the Hon’ble Supreme Court, yet, purely for reasons of abundant precaution, the name of the victim has not been mentioned in the present judgment and the victim is only addressed as “prosecutrix”. 3. Heard learned Senior Counsel with Amicus Curiae for the appellant and learned AGA for the State. 4. Present Criminal Appeal arises out of a judgment and order dated 28.5.2010 passed by the learned Additional District & Sessions Judge/First Fast Track Court, District Kashipur, Udham Singh Nagar in Sessions Trial No. 144 of 2008 convicting the present appellant under Sections 307 and 376 IPC and thereby sentencing him for 10 years of rigorous imprisonment under Section 307 IPC and fine of Rs. 5,000/-, 10 years of rigorous imprisonment under Section 376 IPC and fine of Rs. 5000/-. 5. The brief facts of the case, as per the story of the prosecution, in its First Information Report (hereinafter referred to as FIR) are that an FIR was lodged on 8.3.2008 at 15.05 PM at Police Station Kashipur, Udham Singh Nagar by one Navneet Kumar, brother of the prosecutrix stating that on 5.3.2008 at about 7.15 PM when his younger sister aged about 13 years (daughter of Shri Rakesh Kumar) had gone to a house of neighbour, namely, Jaipal Tyagi they heard her voice at about 7.25 PM asking for help and when he came out from the house on the streets he found that a boy was trying to throttle her sister. On seeing her brother i.e. informant, the boy (i.e. the accused) ran away. It is further stated in the FIR that in case the informant sees the boy (i.e. the accused) he will recognize him. His sister at that time was totally naked and unconscious. In that state he brought his sister to his house and placed her on a cot. It is further stated in the FIR that in case the informant sees the boy (i.e. the accused) he will recognize him. His sister at that time was totally naked and unconscious. In that state he brought his sister to his house and placed her on a cot. At that time she was bleeding and was unconscious. When she regained conscious on 7.3.2008, she informed her brother that on 5.3.2008 when she was returning from the house of Jaipal Tyagi she was caught by the accused/appellant son of Ram Singh and thereafter she was dragged behind the house of one Rajendra Sharma. The accused shut her mouth by the palm of his hand and later she was raped. An attempt was also made to throttle her so that she could not raise her voice. Subsequent to the FIR, an investigation was made and as per the records the accused was arrested on 9.3.2008 next day. The police filed chargesheet under Sections 376 and 307 IPC and the matter was committed to sessions for trial on 20.6.2008. 6. Prior to this, we must also examine the medical examination report of the prosecutrix. Evidently the prosecutrix was medically examined on 8.3.2008 at 4.00 PM at L. D. Bhatt Government Hospital, Kashipur, Udham Singh Nagar. The medical report states that there are “abrasions/nails marks on both sides of neck and areas around abrasions slightly inflamed.” On internal examination, it was found that both Labia Majora and Labia Minora were inflamed. Hymen was ruptured. Small abrasions were also found on the vaginal wall, and blood too was detected. The report further states that the vagina admits only one finger. The doctor opines that the girl i.e. the prosecutrix appears to be a victim of rape or an assault. Vaginal smear was taken and sent for pathological examination and for determination of age of the prosecutrix X-ray was recommended. There is supplementary report dated 29.4.2008 on record which shows that the prosecutrix was brought by a lady constable on 8.3.2008 at about 4.00 PM at L.D. Bhatt Hospital, Kashipur, Udham Singh Nagar. It further states that “according to X-ray report of right elbow, right wrist and right knee of the prosecutrix the age of the girl is about 13 years”. The pathological report though shows that no spermatozoa or semen are present. 7. It further states that “according to X-ray report of right elbow, right wrist and right knee of the prosecutrix the age of the girl is about 13 years”. The pathological report though shows that no spermatozoa or semen are present. 7. The prosecution in order to establish its case examined as many as five witnesses. 8. The testimony of the prosecutrix which was examined as PW2 is absolutely relevant. The examination in chief of the prosecutrix was done on 24.11.2008 where she states that on 5.3.2008 when she had gone to the residence of one Jaipal Tyagi and while she was returning from the house of Jaipal Tyagi, she met the accused, who resides in her Mohalla, whom she recognized in the Court. The accused was standing at a lonely place. She was later caught by the accused near the house of one Rajendra Sharma, her mouth was closed by a piece of cloth, which the accused was carrying, thereafter she was stripped and raped by the accused. After committing rape, the accused also tried to kill her by throttling her to death when she tried to raise an alarm. Her brother i.e. PW1, however, came to the spot and on seeing her brother the accused ran away. She later fell unconscious. She further states that she regained conscious only after two days when she informed about the incident to her family members. She was also taken to the hospital where she was medically examined. She admits that X-ray of her hands and knees were taken. She further states that while she was being raped she sustained injuries on her private parts and on her neck. This particular witness was thereafter put to a very heavy cross-examination. It has come in her cross-examination that she was informed about the name of the accused after the incident. She does not remember as to who informed her about the name of the accused but she suggests that it could have been her brother. 9. The defence tried to draw immense mileage out of the above statement regarding the identity of the accused and has drawn attention of this Court to the fact that the identity of the accused always remains in doubt. 9. The defence tried to draw immense mileage out of the above statement regarding the identity of the accused and has drawn attention of this Court to the fact that the identity of the accused always remains in doubt. Not only the prosecutrix did not know the name of the accused till she was informed by her brother but also her brother did not know the name of the accused initially as he actually saw some “unknown person” throttling her sister. It has further been pointed out that the brother of the prosecutrix himself was examined as PW1 who clearly stated that he knew the accused as he resides in the same colony. The argument which has come forward is that in case the accused was known to the brother of the prosecutrix i.e. PW1 then there could not have been any reason for him to have not disclosed the name of the accused in the FIR. The FIR states, however, that an unknown person was throttling his sister though he can recognize the accused if is produced before him. These discrepancies have been highlighted by the defence before this Court. 10. PW1 Navneet Kumar, who is the brother of the prosecutrix, in his examination in chief has reiterated what he has stated in the FIR. He states that the accused and his accomplice also tried to stop him from lodging of the FIR and that he had “Maarpeet” with them outside the police station as well. 11. The statement of PW5 i.e. Dr. Anjali Gupta, who had medically examined the prosecutrix on 8.3.2008 was examined on 28.4.2010 is also of relevance. In her testimony, the doctor states that she had examined the prosecutrix on 8.3.2008 and she found that the prosecutrix was a girl of small built. On pressing her abdomen, the prosecutrix complained of pain. On external examination, she found that there were marks of abrasion on both sides of the neck as well as marks of nails. There was also inflammation around the vagina. On internal examination she found that the vulva was inflamed, hymen was torn, etc. and that on the labia majora and labia minora blood could also be seen. She clearly gave an opinion that this was a case of rape. She also confirms that she had taken the slides of vaginal smears and sent for pathological examination. On internal examination she found that the vulva was inflamed, hymen was torn, etc. and that on the labia majora and labia minora blood could also be seen. She clearly gave an opinion that this was a case of rape. She also confirms that she had taken the slides of vaginal smears and sent for pathological examination. She further states that had these injuries been of a severe nature they were sufficient for the death of the prosecutrix. She determines the age of the prosecutrix around 13 years on the basis of X-ray report. 12. The other plank of argument for the defence before the trial court as well as before this Court has been that there has been inordinate delay in lodging of the FIR. A lot of time has been wasted, as the prosecutrix remained unconscious for almost two days. Even assuming for the sake of convenience, it is contended that the prosecutrix regained consciousness on the evening of 7.3.2008, the FIR could have been lodged on that day itself, yet the FIR has been lodged on 8.3.2008. Therefore the FIR itself is an afterthought and cannot be said to be a First Information Report, as the same has been lodged after due consultation and planning, it has been argued. The fact that the FIR is a typed report has also been pressed upon. It is said that the report is a “typed” report, which would mean that the informant had an occasion for consultation and he consulted the matter and thereafter an FIR has been lodged, with much deliberation. Secondly, even the informant does not say that it was the accused who was actually throttling his sister as he did not recognize him by name at that particular time of incident. This version contradicts the later version which he has given as PW1 wherein he says that he recognizes the accused as he resides in the same colony. 13. Learned AGA for the State, on the other hand, urges the Court to examine the case in the context of the place and its surroundings as the rape has been committed, which is in a small town in Uttarakhand, called Kashipur. 13. Learned AGA for the State, on the other hand, urges the Court to examine the case in the context of the place and its surroundings as the rape has been committed, which is in a small town in Uttarakhand, called Kashipur. From all the evidences the victim and her family members belong to a lower stratum of society and merely because there has been a delay in lodging of the FIR it should not work against the prosecution or against the prosecutrix. Learned AGA further states that the medical report of the prosecutrix also leaves no doubt that rape has been committed and there is no plausible reason for the prosecutrix or for the prosecution to falsely implicate the accused in a case of rape. He further states that it is neither a case of enmity or prior dispute between the two nor any such fact has come in the statement of the prosecutrix given under Section 313 Cr.P.C. 14. After hearing counsel for the appellant as well as state counsel, this Court is of a clear view that neither the delay in the lodging of the FIR nor the contradictions which have come in the statement of the prosecutrix PW2 or her brother PW1 shall give any benefit to the accused. The medical evidence clearly suggests that it is a case of rape. Of this there is no doubt. The medical report clearly suggests that the prosecutrix is about 13 years of age. The medical report is also clear on one aspect that after committing rape upon the prosecutrix the accused also tried to throttle her to death as there are clear marks of abrasions on her neck which corroborates the theory of the prosecution. 15. Moreover, It has been specifically stated by PW1, brother of the prosecutrix, who had reached the seen of crime at the time when the rape was being committed as stated in the FIR, that though he does not know the name of the accused he did, however, identify the accused while giving in his examination in chief. Hence, there was a substantial piece of evidence before the court and there is absolutely no doubt as to the identity of the accused. Hence, there was a substantial piece of evidence before the court and there is absolutely no doubt as to the identity of the accused. The delay in lodging of the FIR has also been reasonably explained inasmuch as the family member had first to battle with the trauma and shock which the prosecutrix had undergone after the inhuman act of rape was committed on her. Secondly, it has also come on record that when ultimately PW1 (i.e. the complainant) went to the police station to lodge the FIR he was apprehended by the accused and his friends and there was some kind of threat on the complainant not to lodge FIR. All these circumstances only mitigate the delay factor as that stands reasonably explained. 16. Moreover, in cases of rape the approach of the Court also has to be different. Hon’ble Apex Court in Visveswaran Vs. State Rep. by S.D.M. reported in (2003) 6 SCC 73 while dismissing the appeal of the accused in a case of Section 376 IPC stated as under:- “…The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view.” 17. After hearing learned Senior Counsel for the appellant on the quantum of sentence, this Court is of a clear view that there are no special or mitigating circumstances, which may impress upon the Court to reduce the sentence of the accused, as awarded by the trial court. 18. The appeal therefore fails and is hereby dismissed. Accordingly, the judgment and order dated 28.5.2010 passed by the court below in Sessions Trial No. 144 of 2008 is upheld. 19. The accused/appellant is on bail. His bail is cancelled. He shall be immediately taken into custody by the police and shall carry out the remaining period of sentence awarded to him. All the sentences against the accused shall run concurrently. The period already undergone by the appellant during the trial and appeal shall be deducted from the above sentence. 19. The accused/appellant is on bail. His bail is cancelled. He shall be immediately taken into custody by the police and shall carry out the remaining period of sentence awarded to him. All the sentences against the accused shall run concurrently. The period already undergone by the appellant during the trial and appeal shall be deducted from the above sentence. Let a copy of this judgment be sent to the trial court to make appellant serve out the sentence as awarded by the court below. Lower Court record be sent back.