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2016 DIGILAW 536 (ALL)

KISHNEY v. STATE OF U. P.

2016-02-15

RANJANA PANDYA

body2016
Judgment : Hon'ble Mrs. Ranjana Pandya,J. 1. Challenge in this appeal is to the Judgment and order dated 21.10.2009 passed by the Additional Sessions Judge, Court No.5, Banda in S.T. No. 73 of 2008 (State Vs. Kishney) arising out of Crime No. 21 of 2008 Police Station Baberu, District Banda whereby the accused appellant was found guilty under Section 376 I.P.C. and was sentenced to undergo ten years rigorous imprisonment and fine of Rs.10,000/- with default stipulation. 2. As per the prosecution case, the informant Seelam lodged a written report at the police station stating that her niece aged seven years resident of Palhari Police Station Bisanda District Banda was going from the house of the informant on 9.1.2008 towards the 'bada' (pen). Suddenly, the accused appellant Kishney enticed her to his house and raped her. He was trying to find a 'hansia' (sickle) to kill her. Suddenly, the victim found opportunity and ran out. She reached home. The informant saw that she was bleeding. Witnesses Nand Kishor and Dev Kumar Patel were present at the house who saw the injuries of the victim. Hence, F.I.R. was lodged. 3. Investigation was entrusted to S.I.Hem Raj Yadav (P.W.6). He copied the copy of the chik report in the case diary, recorded the statement of the victim and other witnesses. The statement of the witnesses recorded by this witness under Section 161 Cr.P.C. in the case diary was copied by the witness and submitted in the court which was proved as Ext. Ka-7. On the same day at the pointing out of Raj Rani and the informant, he inspected the spot, prepared the site plan which was proved as Ext. Ka-8. On 10.1.2008 he arrested the accused and recorded the statement. On 11.1.2008 the medical report of the victim was copied in the case diary. The blood stained panty, skirt and shirt of the victim was taken in possession. The document was prepared by Constable Satya Narayan Tiwari, which was proved by this witness as Ext. Ka-9 and the clothes of the victim were proved as material Exts. 2, 3 and 4. On the same day, the statement of Constable Ravi Kant Yadav was recorded. On 1.2.2008 the supplementary medical report was copied in the case diary. On 9.2.2008 charge sheet was submitted against the accused persons which was proved as Ext.Ka-10. Ka-9 and the clothes of the victim were proved as material Exts. 2, 3 and 4. On the same day, the statement of Constable Ravi Kant Yadav was recorded. On 1.2.2008 the supplementary medical report was copied in the case diary. On 9.2.2008 charge sheet was submitted against the accused persons which was proved as Ext.Ka-10. Constable 319 Rama Kant Yadav (P.W.5) prepared the chik report on the basis of the written report which was proved as Ext.Ka-5. This witness further proved copy of G.D. as Ext.Ka-6. Victim was medically examined by P.W.3 Dr. Bhawana Sharma, who found an abrasion 2c.m. X 2c.m. on the right cheek of the victim. On internal examination 1c.m. laceration was seen at 6 O'clock position on vagina. The hymen was torn and bleeding was present. The blood stained clothes were handed over to the police. This witness proved the medical report as Ext.Ka-2. P.W. 4 is Dr. Gyanendra Nikhra who conducted the ossification report which was proved as Ext.Ka-4. The X-ray plate was proved as material Ext.1. 4. P.W.1 is Seelam, the aunt of the victim, who has proved the F.I.R. as Ext.Ka-1. P.W.2 is Deo Kumar, who is the maternal uncle 'mama' of the victim who is said to have given evidence about what the victim narrated to him just after the occurrence. The statements of P.W.3 Dr. Bhawna Sharma, P.W.4 Dr. Gyanendra Nikhra, P.W.5 Rama Kant Yadav and P.W.6 S.I. Hem Raj have already been discussed by me. 5. After close of the prosecution evidence, the statement of the victim was recorded under Section 313 Cr.P.C. in which he denied the occurrence and stated that he had been involved on the instigation of Ram Chandra Patel, who was inimical with him. The informant and Ram Chandra Patel belonged to the same party. However, no evidence was adduced in support of the defence version. 6. After hearing counsel for the parties, the learned trial court returned the finding of guilt as specified in paragraph 1 of the Judgment. Feeling aggrieved, the accused has come up in appeal. 7. I have heard learned counsel for the parties at length and perused the original record of the case. 8. Counsel for the appellant has submitted that although the victim was produced before the Court but no prosecution witness number was allotted to her. Feeling aggrieved, the accused has come up in appeal. 7. I have heard learned counsel for the parties at length and perused the original record of the case. 8. Counsel for the appellant has submitted that although the victim was produced before the Court but no prosecution witness number was allotted to her. But since she did not depose anything before the Court, she was discharged and her statement could not be recorded and in the absence of the statement of the victim, the charges against the accused do not stand proved. Further he has submitted that the conviction by the learned lower court is bad in the eye of law inasmuch as the learned lower court has based its findings on hearsay evidence, which is not admissible in evidence. 9. Per contra, the learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on admissible evidence. He has further contended that there was nothing to show that the appellant had been falsely implicated, and the appeal is liable to be dismissed. 10. Perusal of the F.I.R. shows that as per the chik report (Ext.Ka-5), the occurrence is said to have taken place on 9.1.2008 at 1 O'clock in the day time whereas the report has been lodged at the police station on the same day, i.e., 9.1.2008 at 2.40 O'clock, i.e., 1 hour 40 minutes after the occurrence, the distance of the police station from the place of occurrence being four kilometers. The informant has stated that she went by bicycle to the police station. Thus, there is no delay in lodging the F.I.R. which is prompt. She was put to some questions in cross-examination whether she knew the meaning of egksn;] izkFkhZ] izHkkjh fujh{kd to which she stated ignorance but these are minor discrepancies, which do not discredit this witness or otherwise falsify the case of the prosecution. 11. As far as the occurrence is concerned, although the victim is said to have stated about the occurrence in her statement under Section 161 Cr.P.C. but since the victim could not be examined before the trial court, the Investigating Officer copied her statement given under Section 161 Cr.P.C., which was exhibited by the court as Ext.Ka-7. 11. As far as the occurrence is concerned, although the victim is said to have stated about the occurrence in her statement under Section 161 Cr.P.C. but since the victim could not be examined before the trial court, the Investigating Officer copied her statement given under Section 161 Cr.P.C., which was exhibited by the court as Ext.Ka-7. But, I do not think this evidence of the victim given under Section 161 could be used as a statement given before the court because law does not permit to do so. Thus, the court will have to refer to the statements of the informant (P.W.1) and Deo Kumar (P.W.2), who are admittedly related to the victim. We cannot lose sight of the fact that related witnesses are not incompetent witnesses and their evidence cannot be thrown out only on the ground of they being related to the accused. 12. Admittedly, witnesses Seelam P.W.1 and Deo Kumar (P.W.2) are related to the victim. They have admitted their relationship with the victim. It is the case of the prosecution that when the victim returned home after the occurrence she was bleeding and weeping. The informant P.W.1 Seelam was sitting in the house where P.W.2 Deo Kumar was also sitting. The presence of the family members in the house and the victim narrating the incident to her family members is not improbable and unreliable but, in fact it is the natural conduct of a minor innocent girl. Both P.W.1 Seelam and P.W. 2 Deo Kumar have admitted that they did not see the occurrence themselves. 13. As far as the evidence of the related witnesses is concerned in 1992 AIR 891 Chandra Mohan Tiwari and another Vs. State of Madhya Pradesh decided on 22.1.1992, the Hon'ble Apex Court has observed as under:- "Being the parents of the victim, they would be the least disposed to falsely implicate the appellants or substitute them in place of the real culprits. In our considered opinion whilst the conclusion arrived at by the Trial Court abjuring the unimpeachable and reliable evidence of PWs 5 and 6 on speculative reasons and unreasonable grounds, the contrary conclusion of the High Court based on the evolution of the evidence does not suffer from any illegality or manifest error on perversity nor is it erroneous. In our considered opinion whilst the conclusion arrived at by the Trial Court abjuring the unimpeachable and reliable evidence of PWs 5 and 6 on speculative reasons and unreasonable grounds, the contrary conclusion of the High Court based on the evolution of the evidence does not suffer from any illegality or manifest error on perversity nor is it erroneous. Further, on our independent analysis of the evidence we see absolutely no substantial and compelling reasons to brush aside the testimony of these two eye-witnesses and to take a contrary finding to that of the High Court." 14. Thus the related witnesses would all the more be interested to bring the real culprits to book rather than implicate innocent persons in such a matter as this is a case relating to rape of a minor girl. But as the law has been laid down in this aspect the court should be very catious in examining evidence of such witnesses. 15. P.W.1 Seelam has stated that when the victim reached home, her private parts were bleeding and she was weeping. When she asked the victim as to what had happened, she said that she was taken by one 'baba' who raped her. The victim also described the act of sexual interacts to her aunt (P.W.1) and when she went near the house of the accused, who was standing there, he was identified by the victim as 'baba', who had raped her. This witness underwent the test of cross-examination. Some fishing cross-examination was done about some dispute between the accused and one Ram Chandra Patel but noting could be established in the oral evidence of this witness about her cordial relations with Ram Chandra and inimical relations with the accused although she has admitted that the accused is a married man with children. She has also admitted that she does not have any enmity with the accused. P.W.2 Deo Kumar being the maternal uncle of the victim was present when the incident was being narrated by the victim, who stated that baba lifted her and raped her. An extensive cross-examination was conducted on this witness also but there is nothing in his cross-examination which could discredit this witness. He has also admitted that he saw the victim bleeding. 16. An extensive cross-examination was conducted on this witness also but there is nothing in his cross-examination which could discredit this witness. He has also admitted that he saw the victim bleeding. 16. Counsel for the appellant has submitted that although the victim was produced before the court but since she could not state anything, hence, she was discharged. A perusal of the court observation reveals that the trial court was not at all vigilant and sensitive in the matter and did not try to do anything to ensure the recording of the statement of the victim. There is no mention in the statement whether the proceedings were conducted in camera or whether the Presiding Officer made any attempt to get the statement of the small child recorded in his Chamber to make the child comfortable but such inactiveness on the part of the P.O. will have no adverse bearing on the case. Inasmuch as it is the settled principle that where a rape has been committed on a child of tender age, there is no rule of law requiring corroboration from an independent source of evidence of the child as to the identity of the accused. The examination of the child or otherwise does not make any difference, when the fact is taken note of that the child was just aged about 4 or 5 years at the time of committing the crime and could not have expected to examine the child so as to recollect the memory of the worst incident which took place in her life. When it involves dignity and honour of the child and her family, it cannot be expected that a child of such a tender age to step into the witness box and depose the facts. Although Section 60 of the Indian Evidence Act stipulates that the oral evidence must be direct that is to say the fact to be proved could be seen, heard, touched and tasted or smelt but it is to be noted that Section 60 of the Evidence Act does not preclude from string the circumstantial evidence of things that could be seen heard or felt. 17. 17. Under Section 6 of the Evidence Act, it is proved that facts which though not in issue are so connected with the fact in issue has to form part of the same transaction are relevant whether then occurred at the same time and place or different time and place. In the present case, what was stated by the victim to Seelam and Deo Kumar (P.W.2) immediately after the occurrence at her house is relevant fact and the statement of Seelam P.W.1 and Deo Kumar P.W.2 can be taken into consideration in support of the other evidence of the prosecution in the facts and circumstances of the case. 18. So far as this case is concerned, can the aunt and maternal uncle be termed as independent witnesses? I think I have no doubt on this core. It may be that family members may not be sufficiently independent to fulfill the requirements of the corroboration rule. But, there is no legal bar to exclude them from its operation merely on the ground of their relationship. Independently merely means independent of sources which are likely to be tainted. In the absence of any enmity against the accused, there is no reason why P.W.1 and P.W.2 would falsely implicate the accused. The subsequent conduct of the victim is not only relevant but important and material since anything said by the victim after the occurrence to her parents /others would form part of res jesta. Such conduct can be corroboration itself of evidence. Besides, in Rameshwar Kalyan Singh Vs. State of Rajasthan, AIR 1952 Supreme Court 54, it was observed that where the raped girl instantly ran home to her mother but not finding her there, went to sleep and when the mother returned and asked, the girl told her what had happened. The statement made to her mother falls within the ambit of Section 157 read with Section 8 illustration (j) of the Evidence Act. The statement made to her mother falls within the ambit of Section 157 read with Section 8 illustration (j) of the Evidence Act. Section 157 of Evidence Act reads follows:- "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." Thus, the factum of narrating the incident to her aunt and maternal uncle immediately after the incident by the prosecutrix becomes relevant as subsequent conduct under Section 157 read with Section 8 of the Evidence Act. 19. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. 20. As far as the corroboration of the statements of P.W.1 Seelam and P.W.2 Deo Kumar is concerned, their statement finds corroboration from the statement of P.W.3 DR Bhawna Sharma who has proved the contusion of 2cm x 2 cm red colour on her right cheek. Although in cross-examination, this witness has denied that this contusion was not of teeth bite but it not at all the case of the prosecution that the accused but the child on her cheeks. This possibly could have been caused by the resistance offered by the child. 21. Dr. Bhawna Sharma, who examined the victim internally found 1 cm. laceration at 6 o'clock position on the vagina, the hymen was torn and bleeding was present. The victim was examined by the doctor on 9.1.2008 on 10.45 p.m., i.e., on the same day of the occurrence. Although the doctor opined that she could not give any definite opinion about rape but she admitted that she could not deny the possibility of sexual intercourse with the child. The secondary sexual characters of the child had not developed. The doctor also stated that during examination, the child was bleeding which finds support from the medical report prepared by the doctor, which is Ext.Ka-2. Although Investigating Officer P.W. 6 Hem Raj has admitted that he did not get the test identification parade conducted but I do not think this was needed because the victim had identified the accused at his house. Although Investigating Officer P.W. 6 Hem Raj has admitted that he did not get the test identification parade conducted but I do not think this was needed because the victim had identified the accused at his house. Some insignificant contradictions in the statements of the witnesses were put to the Investigating Officer P.W. 6 but they are minor and insignificant contradictions which do not affect the prosecution case. Besides this, any shortcomings in the investigation, which do not strike at the root of the case, would not make the prosecution case doubtful. Thus, the case of the prosecution stands proved beyond all reasonable doubt. 22. In the statement recorded under Section 313 Cr.P.C. the accused had stated that a false report was lodged against him due to party bandi and on the instigation of Ram Chandra Patel because the informant belongs to the caste of Ram Chandra Patel. But, this act of enmity has not been proved by the defence. 23. Thus, what has been stated above leads to the conclusion that the prosecution has proved the case beyond all reasonable doubt against the accused and the learned lower court has rightly convicted the accused. 24. Counsel for the appellant has further submitted that the accused is in jail and the sentence imposed by the lower court is very harsh, thus the sentence may be reduced to the period already undergone by the accused. 25. Reduction of the sentence depends upon the facts and circumstances of each case. The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the concerned offence, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it. The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilized society does not revert to the days of 'an eye for an eye and a tooth for a tooth'. Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted. Even in the time of Kautilya, the need for awarding just punishment was recognized. Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted. Even in the time of Kautilya, the need for awarding just punishment was recognized. According to Kautilya, "whoever imposes severe punishment becomes repulsive to people, while he who awards mild punishment becomes contemptible. The ruler just with the rod is honoured. When deserved punishment is given, it endows the subjects with spiritual good, material well being and pleasures of the senses." This philosophy is woven into our statute and our jurisprudence and it is the duty of those who administer the law to bear this in mind. 26. In Earabhadrappa Vs. State of Karnataka [ (1983) 2 S.C.C. 330 ], this Court observed as under:- "A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders." 27. Thus, the imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 28. It is true that reformation as a theory of punishment is in fashion but under the guise of applying such theory, courts cannot forget their duty to society and to the victim. 28. It is true that reformation as a theory of punishment is in fashion but under the guise of applying such theory, courts cannot forget their duty to society and to the victim. The Court has to consider the plight of the victim in a case involving rape and the social stigma that may follow the victim to the grave and which in most cases, practically ruins all prospects of a normal life for the victim. Could a Court afford to forget these aspects while imposing a punishment on the aggressor? I think not. The Court has to do justice to the society and to the victim on the one hand and to the offender on the other.. The proper balance must be taken to have been stuck by the legislature.. 29. Thus, the heinous crime of committing rape on a helpless 6-9 year old girl shakes the judicial conscience. The offence was inhuman. There are no extenuating or mitigating circumstances available on record, which may justify reduction of the sentence. Thus, what has been stated above, the sentence imposed on the accused is just and proper according to the facts and circumstances. 30. Accordingly, the appeal is dismissed and the Judgment and order dated 21.10.2009 passed by the Additional Sessions Judge, Court No.5, Banda in S.T. No. 73 of 2008 (State Vs. Kishney) arising out of Crime No. 21 of 2008 Police Station Baberu, District Banda is hereby upheld. 31. The accused is in jail. He will serve out the sentence as awarded by the trial court. 32. Let a copy of this judgment be transmitted to the trial court.