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2014 DIGILAW 1744 (ALL)

Bankey Lal v. State of U. P.

2014-05-28

ARVIND KUMAR TRIPATHI II

body2014
JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. 1. Instant criminal appeal has been filed by Bankey Lal challenging his conviction in ST No.267 of 2009, Crime No.890 of 2008, under Section 376 IPC, Police Station Kotwali Dehat, District Sultanpur. 2. As per factual matrix of the case, FIR was lodged by Malti Devi in Police Station Kotwali Dehat, District Sultanpur on 14.11.2008, at about 8: 30 PM, alleging that she had gone to ease herself out side the vilalge, at about 5 PM. Her daughter the victim was along in the house. Bankey Lal, who is neighbour took her to his house and raped her. Her daughter narrated her plight to her aunt, then they both informed her. On this, a case under Section 376 IPC was registered. During investigation girl was medically examined. Medical examination report was prepared and charge sheet was submitted against the present appellant. After charge sheet, cognizance was taken, the case was committed to the court of sessions and charge under Section 376 IPC was framed against the appellant. He pleaded not guilty and claimed to be tired. The age of the victim was found to be 7 years. 3. To prove the case, prosecution examined PW-1 Malti Devi, PW-2 Sheela Devi, PW-3 the victim, PW-4 S.I. Ram Kumar Tiwari, PW-5 Head Constable Awadhesh Kumar Yadav, PW-6 Dr. Urmila Chaudhary. The statement of the accused was recorded in which he claimed that the victim was raped by one Rajju. When the victim informed Sheela, as mother of victim was having illicit relation with Rajju, then in order to save him and due to enmity, he was falsely implicated. The accused has examined DW-1 Pintu and DW-2 Sanju as defence witness. 4. The trial court, after going through the evidence on record and hearing the parties, convicted the appellant under Section 376 IPC and directed him to undergo 10 years RI under Section 376 IPC and further directed to pay fine of Rs.5000/- as fine. In default of payment of fine, he was to undergo six months RI. Hence, this criminal appeal. 5. It was submitted by the learned counsel for the appellant that medical report does not corroborate the prosecution story. The court below has wrongly discarded the testimony of defence witness. No offence under Section 376 IPC is made out against the appellant. 6. Hence, this criminal appeal. 5. It was submitted by the learned counsel for the appellant that medical report does not corroborate the prosecution story. The court below has wrongly discarded the testimony of defence witness. No offence under Section 376 IPC is made out against the appellant. 6. Learned AGA submitted the argument in support of the judgment of conviction. 7. After entering into the merit of the case, the medical evidence and statement of doctor is to be discussed. PW-6 Dr. Urmila Chaudhary is witness, who has medically examined the victim on 14.11.2008, at about 11: 30 PM, and prepared medical examination report. According to medical report Ex.Ka.6 hymen was intact, but there was slight laceration at fourchette. This witness has, on the basis of radiological report, found the age of victim to be 7 years. Supplementary report is Ex.Ka.7-A. Medical report is Ex.Ka.6-A. It is also worth mentioning that after FIR the clothes, which the victim was wearing was taken into the possession by the Investigating Officer and was sent to Vidhi Vigyan Prayogshala. The report of Vidhi Vigyan Prayogshala is Ex.Ka.5. It reveals that in her hymen blood, smear and spermatozoa was found on the under wear of the victim. Medical report of the victim Ex.Ka.6-A and report of Vidhi Vigyan Prayogshala indicates slight penetration. PW-6 Dr. Urmina Chaudhary has also categorically stated in her cross examination that it is not possible that injuries of fourchette can be manufactured. She has in her examination in chief stated that injuries of fourchette can be caused by male sex organ. The combined effect of the above fact and statement of accused under Section 313 Cr.P.C. indicates penetration by mail sex organ. 8. DW-I Pintu has stated that Rajju took Archana to her house. He stated that he heard the victim alleging that Rajju had removed her underwear. On this, mother of the victim took her house beating her. This witness and DW-2 Sanju had tried to say that Rajju tired to rape her. Thus, statement of these two witnesses have been disbelieved by the trial court on the ground that they are of the same family of Bankey Lal. The court has observed that these witnesses have been brought by the wife of accused. 9. This witness and DW-2 Sanju had tried to say that Rajju tired to rape her. Thus, statement of these two witnesses have been disbelieved by the trial court on the ground that they are of the same family of Bankey Lal. The court has observed that these witnesses have been brought by the wife of accused. 9. PW-1 mother of the victim has stated has stated on oath that on the fateful day her daughter was playing besides the house of Bankey Lal. Her sister in law (devrani) was at home. Bankey Lal raped her daughter after taking her at his house. When she returned, her daughter informed her aunt that blood is oozing from her private part. She has informed her that Bankey Lal has raped with him. She also saw her underwear was smeared with blood, then she took her daughter to the police station and informed her nandoi by telephone. He met them near 'Domuha', then she narrated entire story to him. She went to police station along with hm and lodged written report. The Investigating Officer took the underwear of the victim into custody and prepared fard, and sent the victim for medical examination and x-ray. This witness has proved written report Ex.Ka.1 and fard underwear as Ex.Ka.2. In her cross examination, she has stated that her daughter first informed her aunt. At that time, she was not present there. The report was scribed by Hausila Prasad his nandoi, who took two hours in reaching there. Her husband was not present on that date. Her sister in law (devrani) Sheela Devi lives separately in the same house. She had not seen the incident with her own eyes. A suggestion was given to her that she had illicit relation with Rajju. She is not aware that Rajju had ealier eloped with Sheela Devi. A suggestion was given to her that in order to shield the real accused, present applicant has been implicated. This witness has denied to the suggestion and stated that Bankey Lal has committed the same offence 3-4 times. Another suggestion was given that Bankey Lal has been implicated on the instigation of Hausila, Malti Devi and Seela Devi. She has stated in the court that she saw the victim returning in her house and blood was oozing from her private part, underwear was smeared with blood. Another suggestion was given that Bankey Lal has been implicated on the instigation of Hausila, Malti Devi and Seela Devi. She has stated in the court that she saw the victim returning in her house and blood was oozing from her private part, underwear was smeared with blood. She told her that Bankey Lal has committed rape. During her cross examination, she stated that she has not seen the occurrence with her own eyes. She has further stated that when the victim was telling the fact Malti Devi was not present. A suggestion was given to her that on the date of incident Rajju was present, who has committed rape, and she has, in order to save him, implicated Bankey Lal, the present applicant because Rajju was having illicit relation with her Jethani Malti Devi. She has deined the suggestion. From a perusal of statement of both witnesses, it is clear that defence did not dare to the suggestion that she had illicit relation with Rajju and in order to save Rajju, Bankey Lal has been implicated. It is also noteworthy that no cogent evidence regarding any enmity was given by the accused. PW-3 is the victim. She has stated that she is acquainted with Bankey Lal, who is a resident of her village. He had raped her when she was playing. He came to her and lured her on promise of giving bisuit and money, and took her to his house where he raped her. When she cried, he had gagged her mouth. Blood started coming out of her private part, then he left her. She went to her house and informed her aunt Sheela Devi; immediately thereafter her mother came and then she was taken to the police station by her mother. In her cross examination, she has stated that Rajju had not given her any money. Earlier there were cordial relation between Rajju and her family members, but due to some altercation, they are not on talking terms. Her parents had not intimated her about what statement was to be given. She has further stated that what she has stated in her examination in chief was not tutorred by government counsel. The person, who was standing in the dock, was identified on asking by state counsel. PW-4 has taken blood stained underwear and also identified it in the court, which is material Ex.1. 10. She has further stated that what she has stated in her examination in chief was not tutorred by government counsel. The person, who was standing in the dock, was identified on asking by state counsel. PW-4 has taken blood stained underwear and also identified it in the court, which is material Ex.1. 10. S.I. R.K. Tiwari has, in the cross examination, stated that it is wrong to say that Sheela Devi has stated before him that Sanju and Pintu were the persons when victim told her about her plight. 11. There is nothing on record to suggest that defence witnesses were present when victim was narrating her plight to her aunt Sheela Devi. The defence has not dared to put suggestion to PW-1 that she was having illicit relation with Rajju and Rajju has committed offence, and in order to shield him, the present applicant has been implicated. 12. There is nothing on record to show any enmity between the family of the victim and the appellant. Concluding the entire evidence following facts emerged out strongly; (1) Laceration was found on the fourchette during medical examination; (2) Underwear of victim was found smeared with blood and semen and the report of Vidhi Vigyan Prayogshala is on record; (3) Victim is 7 years old girl; and (4) The appellant has also stated in his statement under Section 313 Cr.P.C. that the girl was raped by Rajju. This also corroborates the that the girl was raped. The victim cannot be treated as her statement stands at par with the evidence of an injured witness. An accused can be convicted on the basis of her sole testimoney if her evidence inspires confidence. 13. Considering the entire evidence on record, the trial court has committed no illegality in finding the appellant guilty under Section 376 IPC. There is no error in appreciation of evidence. 14. It is on record, though not argued by the learned counsel for the appellant, that the victim was not subjected to test the understanding of questions put to her due to her tender year. There is no error in appreciation of evidence. 14. It is on record, though not argued by the learned counsel for the appellant, that the victim was not subjected to test the understanding of questions put to her due to her tender year. The trial court has discussed this aspect, and on the basis of decisions of Apex Court in the cases of Kaviraj Tudoo v. State of Assam, 1994 Cr.L.J. 432; Narayan Iranna Potkanthi v. State of Maharashtra, 1994 Cr.L.J. 1752; B.K. Singh v. State of Rajasthan, AIR (39) 1952 SC 54 and Prem Narain v. State, 1989 J.L.J. 207, and found that the statement of victim is trustworthy. In view of the above, the statement of victim alone is sufficient to hold appellant guilty under Section 376 IPC. In the instant case, the statement of victim was supported by corroborative medical evidence. 15. In view of the above, this criminal appeal is liable to fail, and is hereby dismissed. The conviction and sentence awarded by the trial court is upheld. The appellant is in jail. He shall remain in jail to serve out the remaining part of sentence.