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2017 DIGILAW 1143 (ALL)

RAJEEV KUMAR v. STATE OF U. P.

2017-05-01

ASHWANI KUMAR MISHRA

body2017
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—This Jail Appeal is directed against judgment and order dated 25.8.2012, passed by Additional Sessions Judge, Court No. 5, Etah, in Session Trial No. 354 of 2011, State v. Rajesh Kumar, whereby appellant Rajeev Kumar has been found guilty of offence under Section 307, 377 I.P.C. and sentenced to undergo 10 years rigorous imprisonment together with fine of Rs. 10,000/- under both the sections. Sentences are to run concurrently. In the event of non deposit of fine, appellant is to undergo 6 months additional rigorous imprisonment. 2. Prosecution story, in brief, is that informant Manphool Singh alongwith Bhawani Prasad were returning from their relatives place and having alighted from the bus were walking towards the village at 3.30 PM on 3.3.2011 and when they reached the agricultural field of Hori Lal and Ram Sahai, in which mustard crop (Sarson/Laha) was standing, they heard yelling and shrieks from the nearby field and entered it to find that accused Rajeev Kumar was trying to strangulate informant’s nephew Akash, son of Ulphat Singh aged about 8 years. As soon as the accused saw the informant coming close to him, he left the place naked carrying his pant and could not be apprehended despite efforts made. Informant found that accused had performed unnatural offence with minor victim and had also tried to kill him, and teeth bite marks were found on his left cheek apart from injury mark on his neck and blood was oozing out from anal region. The informant took the victim to the police station and lodged the First Information Report at 6.30 PM on the same day under Section 307 and 377 I.P.C. The distance of police station from the scene of occurrence is stated to be 6 km. The accused was around 32 years of age at the time of occurrence. The local police having lodged the First Information Report proceeded with investigation. Statement under Section 161 Cr.P.C. was recorded, site was inspected and a site plan prepared and medical examination of victim was conducted at 9.00 PM on the same evening. 4 injury marks were found in medical examination on the body of victim, whereas 3 injuries were found in the anal region. The Investigating Officer found the incident to have occurred, as alleged by the informant. 4 injury marks were found in medical examination on the body of victim, whereas 3 injuries were found in the anal region. The Investigating Officer found the incident to have occurred, as alleged by the informant. Accused was arrested and a charge-sheet was filed under Section 307 and 377 I.P.C. Accused was supplied materials relied upon by the police against him and the case was committed to the sessions by the Magistrate concerned on 29.6.2011. Accused denied the charges and consequently trial proceeded. 3. Prosecution for proving the charges adduced informant Manphool Singh as PW.1, who supported the prosecution case in examination in chief, but turned hostile during cross-examination, and Bhawani Prasad appeared as PW.3 but turned hostile. Victim Akash Kumar PW.2 has supported the prosecution story. Dr. R.K. Garg appeared as PW.4. Constable Makhan Lal appeared as PW.5, and Investigating Officer R.N. Mishra appeared as PW.6. The substance of charges was explained to the accused under Section 313 Cr.P.C., wherein he denied the incident and contended that a false charge-sheet had been filed against him due to village enmity. No evidence was adduced on behalf of accused. Sessions Court after hearing the A.D.G.C. (Criminal) and Amicus Curiae appearing on behalf of accused found no good ground to disbelieve testimony of minor victim, which was supported with injury report and come to a conclusion that prosecution had established guilt of the accused and consequently awarded sentence, already noticed above. Aggrieved by it, the appellant-accused has filed the present Jail Appeal. 4. Learned Amicus Curiae appearing for the accused appellant submits that the First Information Report is anti-timed rendering the prosecution story highly doubtful. It is contended that presence of PW.1 at the place of occurrence is equally doubtful inasmuch as he has not been able to explain reasons for having gone to village Dhubaiya, which was at a distance of 46 km from the village where incident is stated to have occurred. Reliance is also placed upon the examination in chief of the victim where he admitted that his cloths have not been torned nor he has been assaulted by the accused and that accused had only bitten his cheek. Learned Amicus Curiae further contends that there is no evidence on record to prove that accused had forced himself upon the victim or attempted to throttle him with an intention to commit murder. Learned Amicus Curiae further contends that there is no evidence on record to prove that accused had forced himself upon the victim or attempted to throttle him with an intention to commit murder. It is further contended that there was no evidence of penile penetration to establish the offence under Section 377 I.P.C. It is also stated that anal slides were prepared by the doctor to ascertain presence of semen in the victim but no pathological report has been brought on record. It is also contented that medico legal report does not show any internal laceration or bleeding from the rectum. Reliance is placed upon the opinion expressed in medical jurisprudence by Modi to contend that the medical report does not support ocular statement. It is stated that there was nothing on record to show any pre-meditated attempt on part of the accused to murder the victim, nor there was any evidence that minor victim was taken away or any force was used upon him. Submission is that offence under Section 307 and 377 I.P.C. were not established beyond reasonable doubt and the injuries caused cannot exceed beyond substantive offence under Section 321 I.P.C. 5. Learned Amicus Curiae has placed reliance upon judgment of the Apex Court in Fazal Rab Chaudhary v. State of Bihar, (1982) 3 SCC 9 , judgment of Orissa High Court in Mihir Alias Bhikari Charan Sahu v. State, 1992 Cr LJ 488, judgment of this Court in Mahesh v. State of U.P., delivered in Criminal Revision No. 1965 of 2008 on 2.4.2010, judgment of Patna High Court in Mohan Ojha v. State of Bihar, 2002 CrLJ 3344 , and judgment of this Court in Parmanand Ray v. State of U.P., delivered in Criminal Appeal No. 1836 of 1987. Learned Amicus Curiae towards the end submitted that even if this Court finds charges to be proved against the accused, the punishment imposed be modified inasmuch as punishment awarded is excessive and is not warranted in the facts of the present case. 6. Sri B.A. Khan, learned A.G.A. for the State, on the other hand, has relied upon judgment of Delhi High Court in Javed v. State, delivered in Criminal Appeal No. 843 of 2009 on 21.2.2013 to contend that testimony of child victim together with medical examination report is sufficient to pass an order of conviction. 6. Sri B.A. Khan, learned A.G.A. for the State, on the other hand, has relied upon judgment of Delhi High Court in Javed v. State, delivered in Criminal Appeal No. 843 of 2009 on 21.2.2013 to contend that testimony of child victim together with medical examination report is sufficient to pass an order of conviction. Judgment of this Court in Asif v. State of U.P. delivered in Criminal Appeal No. 1400 of 2006 on 4.8.2015 is also relied upon to contend that Court can rely upon testimony of a child to record an order of conviction. Judgment of Apex Court in Chittar Lal v. State of Rajasthan, (2003) 6 SCC 397 , is also relied upon to contend that conviction based on testimony of sole witness is also permissible. Learned A.G.A. has also placed reliance upon judgment of Karnataka High Court in Syed Pasha v. State of Karnataka, 2004 CrLJ 4123 , to contend that in the matter of sexual assault to a child no corroboration is required. This jugdment is also relied upon for the proposition that non presence of spermatozoa cannot be a ground to reject testimony of prosecution witness. 7. I have heard Sri Sheshandri Trivedi, Amicus Curiae, for the appellant and Sri B.A. Khan, learned A.G.A. for the State and have perused the materials available on record. 8. Prosecution in order to bring home the charge has essentially relied upon the medico legal report/injury report of victim together with his oral testimony, both of which needs to be analyzed. 9. The incident is stated to have taken place at 3.30 PM on 3.3.2011. The victim was referred for medical examination by police to District Hospital, Etah and was examined by the Government doctor at 9.00 PM on the same day. Following 4 injuries were found upon the body of victim apart from 3 injuries in his anal region in the local examination : “Injuries 1. Abraded Contusion 3c x 3c on L side of face 0.5c below to L Eye having serrated margins giving due appearance of Human Teeth bite round in shape colour red. 2. Abraded Contusion 3.5c x 2.0c on L side of face 1c below to injury No. 1 having serrated margin giving due appearance of Human Teeth bite oval in shape below red. 3. 2. Abraded Contusion 3.5c x 2.0c on L side of face 1c below to injury No. 1 having serrated margin giving due appearance of Human Teeth bite oval in shape below red. 3. Multiple abrasions on upper and middle part of neck on front side in a area of 5c x 5c of average size 2c x 0.3c to 0.5c x 0.3c. 4. Abrasion 1.5c x 0.3c on L lateral aspect of neck 6.5c below to L ear lobule. Local Examination 1. Abrasion 0.5cx0.5c on Anal region near to anal opening at 7 o’ clock position. 2. Abrasion 1c x 3c on Anal region near to Anal opening at 2 o’clock position. 3. Abrasion 0.5c x 0.3 on Anal region 0.5c above outer P Anal opening of 11 o’clock position.” 10. The doctor has, however, opined that no definite opinion can be given about sodomy. The victim Akash has given his oral testimony and has supported the prosecution version. The trial Court has recorded that witness appears to be sensible and is capable of giving his statement. Statement of victim Akash as PW.2 is reproduced : ^^fnukad 3&3&2011 dks esjs xkWo ds jktho gkftj vnkyr us fnu ds lk<+s rhu cts esjs lkFk xkWo ds ckgj xyr dke fd;k FkkA jktho us dgk fd eqUuk eqUuk djsxkA jktho us esjk eqWg ckW/k fn;k vkW[ks cUn dj nh vkSj xyk nck fn;k vkSj Hkkx x;kA vkW[kkss es pkmfeu Mky nh FkhA esjk dehp iSUV ugh QkM+k FkkA ekjk ihVk ugha Fkk xky dkV fy;k Fkk eSus vius ekrk firk dks ;g ckr crkbZ FkhA Fkkus esa fjiksVZ dj nh xbZ FkhA esjk MkDVjh eqvk;uk ,Vk vLirky esa gqvk FkkA njksxk th xkWo x;s xkWo esa iwNrkN dh Fkh eSus njksxk th dks crk fn;k Fkk jktho dks iqfyl idM+ ys xbZ FkhA X X X X by defence Counsel. eSus eqUuk crk;k Fkk ftldk eryc xUnh ckrs djuk gksrk gSA iqfyl okys xkM+h yk;s Fks mlh ls Fkkus x;s FksA esjs lkFk esjs pkpk x;s FksA esjs rkÅ fjiksVZ fy[kk;h Fkh esjk jktho us lM+d ds ml rjQ xyk nck;k Fkk ?kj ls T;knk nwj txg ugha FkhA xyk tgkW nck;k Fkk ml [ksr esa ykg dh Qly yxHkx 3 QqV ÅWph gksxhA jkLrs ij fnu Hkj yksx ugh pyrs gSA jktho ds ?kj eS ugh vkrk tkrk gwWA jktho o esjs pkpk ds chp [ksr dk dksbZ >xM+k ugh gSA eq>s ugh ekywe fd esjs lkFk jktho us dksbZ xyr dk;Z fd;k ;k ughA eq>s ugh ekywe fd eSa xkWo okyks ds dgus ls >wBh xokgh ns jgk gksA^^ 11. Although PW.1 Manphool Singh supported the prosecution version of unnatural offence by the accused and initially during cross-examination, but after the matter was deferred, he turned hostile. It is on the basis of such evidence that this Court has to determine as to whether prosecution has been able to establish commissioning of offence by the accused? 12. Minor victim has clearly stated in his oral testimony that accused appellant had done unnatural offence with him (anal sex), and had strangulated him apart from biting his cheek. The medical report supports such version, inasmuch as three injuries have been found in the anal region, extracted above, apart from bite marks on his cheek as well as abrasions on his neck. The only explanation forthcoming from the accused side is that the victim may have fallen on some blunt object (khunti) lying on the field. This explanation is not convincive, inasmuch as if the victim had fallen and sustained injury on the anal area, other injuries including human teeth bite marks on his cheek and minor injury marks on neck are not explained. The defence has not been able to put forth any credible reason as to why would a 08 year old child falsely implicate the accused. The suggestion of village enmity was also not substantiated. In the site plan also, no blunt object was shown to exist in the field. Victim apparently comes from poor family and at this tender age, his statement cannot be disbelieved, specially when the Court found him to be sensible and capable of disclosing his version. The suggestion of village enmity was also not substantiated. In the site plan also, no blunt object was shown to exist in the field. Victim apparently comes from poor family and at this tender age, his statement cannot be disbelieved, specially when the Court found him to be sensible and capable of disclosing his version. The injury marks together with oral testimony of the minor witness would be sufficient to prove the charge of offence under Section 377 IPC. The objection that on the testimony of a sole witness conviction is not liable to be sustained, cannot be accepted in view of the law laid down by the Apex Court in Chittar Lal (supra). Following observations made in the judgment are reproduced : “The other plea was that conviction should not have been made on the basis of a single witness (PW3)’s testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crimes offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.” 13. This Court in Asif (supra) has clearly recognized that in a sexual assault case, it is the victim of such assault, who is the star witness, and the child witness can be a competent witness, if his statement is reliable and corroborated by other evidence. Paras 26 to 29 of the report is reproduced : “26. In sexual assault case, the victim of the sexual assault is always treated to be star witness. Paras 26 to 29 of the report is reproduced : “26. In sexual assault case, the victim of the sexual assault is always treated to be star witness. She has categorically stated that she was called by accused Asif on the pretext of viewing T.V. and she was taken to his house. The appellant was known to the victim girl. Her underwear was undressed by the accused appellant. Thereafter he started “gunda baji”. She further explained such act of the appellant in her own words. Then the blood started coming out from the anus due to the act of the appellant. She categorically mentioned the names of those persons who reached the spot on hearing her shrieks. The statement of the victim was recorded in the year 2002 whereas the incident took place in the year 1999. The age of the victim girl has been mentioned as 8 years on the date of recording on oath statement. The incident relates back to three years then she was approximately five years of age. The testimony of the witness has been assailed on the ground that she was a tutored witness. She was instructed by her father. Accordingly, she gave the statement to the Dagoraji (police officer) and thereafter in the Court. The age of the child is material in this regard. She was hardly about five years. 27. P.W.-2 has categorically denied the suggestion of the defence (Yeh Kahna Galat Hai Ki Asif Ne Mere Sath Gunda Bazi Nahi Kiya). This clearly indicates that the prosecutrix/victim was definite about allegation which was made against accused-appellant. Considering her age, her testimony cannot be discarded on the ground that she is a child. This aspect of the matter has already been considered by the Hon’ble Apex Court from time to time and the Hon’ble Apex Court has been pleased to propound the guidelines in this regard. 28. Considering her age, her testimony cannot be discarded on the ground that she is a child. This aspect of the matter has already been considered by the Hon’ble Apex Court from time to time and the Hon’ble Apex Court has been pleased to propound the guidelines in this regard. 28. In the cases of Shivasharanappa and others v. State of Karnataka and Jagadevappa and other v. State of Karnataka and others decided on 7.5.2013 in Criminal Appeal No. 1366 of 2007 and Criminal Appeal No. 508 of 2007 respectively in paragraph 16 of the judgment, the Hon’ble Apex Court has propounded as follows : “Thus, it is well-settled in law that the Court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the Court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness, who is competent and whose version is reliable.” 29. In the case of Alagupandi @ Alagupandian v. State of Tamil Nadu in reference to Criminal Appeal No. 1315 of 2009 decided on 8.5.2012, the Hon’ble Apex Court in paragraph 23 has pleased to observe as follows: “It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence.”” 14. In Javed (supra), conviction by the trial Court on the testimony of child witness, which was found to be trustworthy and inspiring confidence coupled with medical evidence, was held sufficient to sustain prosecution. 15. The argument that presence of PW-1 is doubtful or that victim admitted that his clothes have not been torn or that he was not assaulted, is not material, inasmuch as consent of a minor child would otherwise not be a valid defence in law, and commissioning of offence is established. 15. The argument that presence of PW-1 is doubtful or that victim admitted that his clothes have not been torn or that he was not assaulted, is not material, inasmuch as consent of a minor child would otherwise not be a valid defence in law, and commissioning of offence is established. Although PW.1 has turned hostile later during cross-examination but has supported prosecution case during examination in chief and also during cross, initially. Testimony of PW.1 insofar as it is consistent with medical evidence and statement of child victim can be relied. Contention that victim had not alleged that accused had thrust upon the minor or that no evidence of penile penetration existed is also misconceived. Injury found in the anal area nearly the anal opening at 7 o’clock position, 2 o’clock position and 11 o’clock position is clearly indicative of anal sex with child. The mere fact that pathological report was not brought on record would not discredit the testimony of minor child. In such circumstances, I am of the opinion that the trial Court has rightly found the appellant accused guilty of offence under Section 377 IPC. 16. Coming to the conviction of accused under Section 307 IPC, it transpires that the trial Court on the basis of injury report and oral statement of the witness has found such charges to be proved. The statement of witness is to the effect that accused has tied his face, closed his eyes and pressed his neck. It was also stated that accused had not assaulted the victim and has also not torn his clothes. The injury on the neck, however, does not support an act of strangulation and appears more like bruises. It appears that having performed unnatural sex with the minor, the accused wanted him not to raise any alarm and with that in object, he had tied the face of victim before leaving the place of occurrence. Since unnatural sex was performed in the agricultural field, certain abrasions may surface on the body. The injury does not appear to be serious enough, so as to bring it within the ambit of Section 307 IPC. Doctor has also not opined that injuries were serious enough, which may cause risk to life. Since unnatural sex was performed in the agricultural field, certain abrasions may surface on the body. The injury does not appear to be serious enough, so as to bring it within the ambit of Section 307 IPC. Doctor has also not opined that injuries were serious enough, which may cause risk to life. The oral testimony although is that accused had pressed his neck, but if the statement is read as a whole, it does not suggest any act on part of the accused to strangulate the minor. In the totality of circumstances, it appears to this Court that the accused having performed unnatural offence, merely wanted to ensure that minor victim may not raise alarm, and accordingly had tied his face. The charge under Section 307 IPC, consequently, is not made out. The conviction and sentence on that count cannot be approved of and is set aside. 17. Legality and propriety of award of sentence is the aspect requiring consideration next. The trial Court has awarded 10 years rigorous imprisonment together with Rs. 10,000/- fine. Learned Amicus Curiae contends that the accused is a first offender and belongs to poorer section of society and has already been punished sufficiently, in terms of loss of respect and esteem amongst villagers and has also substantially served the sentence. It is stated that the appellant has suffered humiliation in public eyes, and he has become a social outcast and merits liberal sentence being awarded to him. 18. Learned A.G.A., on the other hand, submits that the act performed by accused warrants severest of punishment contemplated in law. 19. I have examined the respective submissions advanced by the respective counsel and have also examined the judgments relied upon by the learned Amicus Curiae. In Fazal Rab Choudhary (supra) for an offence under Section 377 the sentence of 3 years rigorous imprisonment was reduced to 6 months. Relying upon it, the Orisa High Court in Mihir Alias Bhikari Charan Sahu (supra) awarded sentence of 2 years rigorous imprisonment. This Court in Mahesh (supra) reduced sentence from 7 years to 5 years in an offence under Section 377 I.P.C. In Mohan Ojha (supra) Patna High Court awarded sentence of 1 and a half years rigorous imprisonment in offence under Section 377. It appears that the accused comes from lower strata of society, and this is his first offence. This Court in Mahesh (supra) reduced sentence from 7 years to 5 years in an offence under Section 377 I.P.C. In Mohan Ojha (supra) Patna High Court awarded sentence of 1 and a half years rigorous imprisonment in offence under Section 377. It appears that the accused comes from lower strata of society, and this is his first offence. He is otherwise languishing in jail since 2011, and has already undergone more than 06 years rigorous imprisonment. Accused at the time of offence was 32 years and would be around 39 years now. In my opinion, appellant has already been sufficiently punished for his misdeed, and he must be given a chance to improve in life. In such view of the matter, sentence of 10 years rigorous imprisonment alongwith Rs. 10,000/- fine is substituted with the sentence already undergone. Fine of Rs. 10,000/- imposed is, however, sustained, and in the absence of its deposit, the accused would have to undergo 06 months’ further rigorous imprisonment. The appeal thus succeeds in part. 20. Sri Sheshandri Trivedi, learned Adovcate, has been of assistance to the Court and shall be paid Rs. 11,000/-, as fee, for assisting the Court.