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2015 DIGILAW 329 (ALL)

Shiv Kumar v. State of U. P.

2015-02-19

BALA KRISHNA NARAYANA

body2015
JUDGMENT Bala Krishna Narayana, J. Heard Sri Imran Ibrahim, amicus curiae appearing for the appellant and Mrs. Manju Thakur, learned A. G. A. for the State. 2. This criminal appeal has been preferred by the appellant, Shiv Kumar against the judgement dated 5.2.2003 and order dated 6.2.2003 passed by the Fast Track Court, no. 4, Varanasi in Session Trial no. 84 of 2002 (State vs. Shiv Kumar), arising out of Case Crime no. 146 of 2001, under section 376 I.P.C., P.S. Ram Nagar, district-Varanasi, by which the appellant was convicted under section 376 I.P.C. and awarded punishment of ten years R.I. and fine of Rs. 5000/- and in default of payment of fine further R.I. of one year. The brief facts of this case are that Smt. Laxmi, mother of the ten years old victim Km. Renu lodged a written report at police station-Ram Nagar, district-Varanasi on 01.11.2001 (Ext. Ka-7) stating therein that the appellant Shiv Kumar who was residing as a tenant in a portion of her house had committed rape of her daughter, Renu in the night of 31.10.2001. On the basis of the written report of Smt. Laxmi Case Crime no. 146 of 2001 was registered against the appellant, Shiv Kumar at police station-Ram Nagar, district-Varanasi. Victim, Km. Renu was medically examined on 02.11.2001.Her medical report is on record as Ext. Ka-1. Her statement under section 164 Cr.P.C. Ext. Ka 9 was recorded on19.11.2001. 3. After completion of the investigation charge sheet was submitted by the Investigating Officer PW-4, Sub-Inspector, Kamlesh Kumar Tripathi against the appellant under section 376 I.P.C. The case was committed for trial to the court of session. Charge was framed against the appellant under section 376(2)(f) I.P.C. on 22.03.2002. The appellant denied the charge and claimed trial. 4.The prosecution in order to prove its case against the appellant examined the informant Laxmi PW-1, Victim, Renu PW-2, Dr. Pritam Pal PW-3, Sub-inspector, K.K. Tripathi (I.O.) PW-4, Jai Prakash Yadav scribe of the F.I.R PW-5, Dr. S.C. Singh, Radiologist PW-6 and Vikram Ram, constable PW-7. 5. The documentary evidence adduced on behalf of the prosecution before the trial court comprised of medical examination report of the victim (Ext. Ka-1), site plan (Ext. Ka-2), charge sheet (Ext. Ka-3), Report of the Forensic Lab dated 11.1.2002 (Ext. Ka-4), written complaint (Ext. Ka-5), X-ray report of the victim (Ext. Ka-6), Chik F.I.R. (Ext. Ka-7), Copy of G.D. (Ext. 5. The documentary evidence adduced on behalf of the prosecution before the trial court comprised of medical examination report of the victim (Ext. Ka-1), site plan (Ext. Ka-2), charge sheet (Ext. Ka-3), Report of the Forensic Lab dated 11.1.2002 (Ext. Ka-4), written complaint (Ext. Ka-5), X-ray report of the victim (Ext. Ka-6), Chik F.I.R. (Ext. Ka-7), Copy of G.D. (Ext. Ka-8), Statement of the victim recorded under section 164 Cr.P.C. and X-ray plate, material (Ext. Ka-9). 6. The appellant in his examination under section 313 Cr.P.C. admitted that he was residing as a tenant in a portion of the house of the informant on the date of the incident with his family. He however, strictly refuted the other allegations made against him by the prosecution. He also stated that the informant was a women of easy virtue and she was having an affair with one Mewa who had raped his wife as a result of which she had lodged a criminal complaint against Mewa and the impugned criminal prosecution had been instituted against him by the informant as a counter blast at the behest of aforesaid Mewa. 7. The appellant had examined his wife Jhanni as D. W. 1. The documentary evidence filed on behalf of the defence comprised of Ext. Kha 1, true copy of the complaint on the basis of which Complaint Case No. 362 of 2002 was registered against Mewa under Section-376 I. P. C. on the complaint of Smt. Jhanni, Ext. Ka 1, true copy of the statement of Jhanni recorded under Section 200 Cr. P. C., true copies of the statements of Arshad Yadav, Sohan and Shiv Kumar recorded under Section 202 Cr. P. C. in the complaint case, Ext. Ka 3, Ext. Ka 4 and Ext. Ka 6 respectively. 8. After conclusion of the trial, the Additional Sessions Judge, court No. 4, Varanasi vide his judgement and order dated 5.2.2003 convicted the appellant under Section 376 I. P. C. and imposed the sentences as referred to hereinabove. 9. Sri Imran Ibrahim, amicus curiae appearing on behalf of the appellant contended that the prosecution story as unfolded in the first information report and in the statements of the prosecution witnesses recorded during the trial is highly improbable. 9. Sri Imran Ibrahim, amicus curiae appearing on behalf of the appellant contended that the prosecution story as unfolded in the first information report and in the statements of the prosecution witnesses recorded during the trial is highly improbable. The learned trial Judge has committed a patent error of law in relying upon the sole testimony of nine years old victim for convicting the appellant without taking into consideration the inherent inconsistencies in her evidence, which clearly indicate that the witness was not speaking truth. The court below has brusquely brushed aside the defence theory of false implication of the appellant in the present case by the informant at the behest of Mewa as well as the evidence of D. W. 1 from which it was conclusively proved that the informant was having a torrid affair with Mewa as well as the other evidence on record including the statements of the complainant and the witnesses recorded by the magistrate in Complaint Case No. 36 of 2002 which had been filed by the appellant's wife against Mewa. The medical examination report of the victim on record does not corroborate the allegation of rape. The failure of the trial judge to draw any adverse inference against the prosecution for their failure to examine the brother and maternal uncle of the victim namely, Pappu and Rajesh who had immediately reached the place of incident upon hearing the shrieks of the victim and had seen the person who had committed rape on the victim putting on his trouser and running away from the place of occurrence. 10. Per contra, Smt. Manju Thakur, learned A. G. A. appearing on behalf of the State vehemently contended that the appellant has rightly been convicted by the court below on the sole testimony of the prosecutrix. She further submitted that it was fully proved from the evidence of the prosecutrix, medical evidence on record and the statement of P. W. 3, Dr. Pratibha who had conducted the medical examination of the prosecutrix that the victim had been raped by the appellant. The finding of guilt recorded by the trial judge does not warrant any interference hence this appeal is liable to be dismissed. 11. I have considered the rival submissions made by learned counsel for the parties and perused the impugned judgement and record of this appeal as well as that of the trial court. 12. The finding of guilt recorded by the trial judge does not warrant any interference hence this appeal is liable to be dismissed. 11. I have considered the rival submissions made by learned counsel for the parties and perused the impugned judgement and record of this appeal as well as that of the trial court. 12. The trial court has recorded conviction of the appellant by placing a very strong reliance on the deposition of the prosecutrix and also on her medical report. The issue whether in a case under Section 376 I. P. C. conviction can be based on the sole testimony of the prosecutrix without any corroboration, was examined by the Apex Court at great length in Narendra Kumar Versus State (NCT OF DELHI) reported in 2012 (7) SCC 171 and also in Manohar Lal Versus State of M. P. reported in 2014 SCC Online SC 930. In the case of Narendra Kumar (supra) Hon'ble apex court had after examining the entire gamut of cases on the issue held that the conviction can be based on the sole testimony of the prosecutrix in a case under Section 376 I. P. C. without any corroboration if it inspires confidence. The apex Court further held that the minor or insignificant inconsistencies, discrepancies or contradictions in the statement of the prosecutrix are in-consequential but if her statement suffers from serious infirmities, inconsistencies and deliberate improvements on material points, no reliance can be placed thereon and in such a case the accused is entitled to benefit of doubt. 13. Paras 20 and 21 of the case of Narendra Kumar (supra) which are relevant for our purpose are being reproduced hereinbelow. 20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 ; and Vishnu v. State of Maharashtra, AIR 2006 SC 508 ). 14. Similarly the apex Court in the case of Manohar Lal (supra) following the dictum laid down by the apex Court in the case of Narendra Kumar (supra) held that though as a matter of law sole testimony of the prosecutrix can sufficiently be relied upon to bring home a charge against the accused except in a case where her version appears to be improbable and difficult to accept on its face value. 15. Thus, what follows from the perusal of the principle of law propounded by the apex court in the cases of Narendra Kumar and Manohar Lal is that in a case under Section 376 I. P. C. conviction can be based on the basis of sole testimony of the prosecutrix without any corroboration provided her evidence is not improbable and unacceptable from its face value. 16. I now proceed to examine the evidence of the prosecutrix who was examined as P. W. 2 during trial. The court has to keep in mind that the prosecutrix was a nine years old minor girl on the date of occurrence. The prosecutrix Renu in her evidence recorded during the trial has categorically stated that she was acquainted with the accused Shiv Kumar. She had identified him in the court. She further deposed that the incident had taken place between 9.00-9.30 P. M. on the day of Quwar purnima while she was sleeping on a cot outside her house. On that date Shiv Kumar had sent his wife on an errand and her mother had gone to see mela. She had identified him in the court. She further deposed that the incident had taken place between 9.00-9.30 P. M. on the day of Quwar purnima while she was sleeping on a cot outside her house. On that date Shiv Kumar had sent his wife on an errand and her mother had gone to see mela. She further stated that she was having some trouble in her eyes and as such her mother had left her at home after making her asleep. While she was sleeping, the appellant came and lied on the same cot on which she was sleeping. She further disclosed smudgy / smoggy details describing the whole incident regarding the manner in which she was raped by Shiv Kumar. She also stated that as a result of rape she had started bleeding. Upon hearing her shrieks her elder brother and maternal uncle had reached the place of incident and on seeing them the appellant after putting on his trousers had managed to run away and although he was chased by her maternal uncle but he managed to escape. The prosecutrix further stated that she was feeling pain after the incident and her private parts were bleeding. She had narrated the entire incident to her mother and brother. She had also shown the place of occurrence to the Investigating Officer. She was medically examined in the hospital. The prosecutrix was subjected to a grilling cross examination by the defence but I am afraid that the defence could not elicit any thing from her which could have rendered her testimony unreliable or untrustworthy. The nine years old victim stuck to the prosecution version as spelt out by her in her statement recorded under Section 164 Cr. P. C. as well as in her examination-in-chief. Learned counsel for the appellant has failed to draw the attention of this Court to any inconsistency, discrepancy or contradiction in her statement which may render her version unacceptable. There are few minor discrepancies in her statement which in my opinion, are insignificant and inconsequential. The crux of the matter is that she has made direct allegation of rape against the appellant and the theory of false implication put forward by the defence does not appear to be very feasible. There is no dispute regarding the age of the prosecutrix. The doctor stated that on the date of occurrence she was nine years old. 17. The crux of the matter is that she has made direct allegation of rape against the appellant and the theory of false implication put forward by the defence does not appear to be very feasible. There is no dispute regarding the age of the prosecutrix. The doctor stated that on the date of occurrence she was nine years old. 17. P. W. 3, Dr. Pratibha who had conducted the medical examination of the victim had in her evidence submitted that she was not in a position to give opinion of rape as there was no full penetration. 18. The underwear which the victim was wearing at the time of the incident was sent to the forensic laboratory and as per the forensic report, Ext. Ka 4 blood as well as semen was found on her underwear. The question which now arises for consideration is whether in the background of the medical evidence on record the offence committed by the appellant will constitute rape or not. The Apex Court while considering an identical issue in the case of Omkar Prasad Verma Versus State of M. P. reported in (2007) 4 SCC 323 has held as hereunder: "To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and rupture of hymen. Partial penetration of the penis within the labia-majora or the vulva or pudenda, with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed." 19. Thus, after considering the evidence on record and the case law on the issue in my opinion, the failure of the prosecution to examine the brother and maternal uncle of the prosecutrix will not vitiate the appellant's conviction in any manner for the simple reason that the version of the prosecutrix stands fully corroborated by the medical evidence on record. The trial court in my opinion convicted the appellant after a meticulous marshalling of the fact of the case and a microscopic scrutiny of the evidence on record. The trial court in my opinion convicted the appellant after a meticulous marshalling of the fact of the case and a microscopic scrutiny of the evidence on record. The impugned judgement is based upon relevant considerations and supported by cogent reasons, hence requires no interference by this Court. 20. Accordingly, this appeal is dismissed. 21. Before parting, the Court would like to appreciate the commendable assistance rendered by Sri Imran Ibrahim, amicus curiae appearing on behalf of the appellant during the hearing of this appeal. He has very fairly stated the facts of the case as well as placed the correct law on the issue. Mrs. Manju Thakur, learned A. G. A. appearing on behalf of the State also deserves equal appreciation. Sri Imran Ibrahim, amicus curiae shall be paid Rs. 11,000/- or prescribed fee as his remuneration.