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2017 DIGILAW 640 (ALL)

SURENDRA PAL v. STATE OF U. P.

2017-02-27

ANIL KUMAR SRIVASTAVA II

body2017
JUDGMENT : Anil Kumar Srivastava-II, J. Heard Sri Manish Mani Sharma, learned counsel for the appellant, learned A.G.A. and perused the record. 2. The instant appeal has been preferred against the judgment and order dated 30.09.1996 passed by learned IVth Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No.116/95 arising out of case Crime no.85/94 under Sections 366, 376, 368 I.P.C., P.S.Sampurna Nagar, District Lakhimpur Kheri whereby the following orders were passed: (i) Accused Buddhiram was convicted and sentenced under Section 368 I.P.C. to 5 years' rigorous imprisonment and a fine of Rs.1000/- with default stipulation of six months' rigorous imprisonment; (ii) Accused Surendra Pal and Jhingur were convicted and sentenced under Section 366 I.P.C. to 5 years' rigorous imprisonment and a fine of Rs.1000/- with default stipulation of six months' rigorous imprisonment; under Section 368 I.P.C. to 5 years' rigorous imprisonment and a fine of Rs.1000/- with default stipulation of six months' rigorous imprisonment and under Section 376 I.P.C. to ten years' rigorous imprisonment and a fine of Rs.2000/- with default stipulation 1 year's rigorous imprisonment. All the sentences were to run concurrently. 3. Learned counsel for the appellant submits that accused Jhingur and Buddhi Ram have also filed Criminal Appeal Nos.443 of 1996 and 446 of 1996 respectively. Both the appeals have been decided as they had undergone the sentences awarded to them. 4. According to the prosecution, Gyan Singh complainant lodged the first information report on 24.8.1994 at 8:00 a.m. at P.S. Sampurna Nagar, District Lakhimpur Kheri stating that in the night of 22.8.1994 he along with his minor daughter, aged about 15 years, 'A' (victim) and other family members were sleeping in the house. At about 11:00 P.M., Surendra Pal and Jhingur forcibly kidnapped his daughter(victim) by threatening her. When complainant resisted he was threatened to be killed. They also threatened that if any report is lodged, the complainant would be finished. Sarif and Jangli have seen the occurrence. An apprehension has also been shown that Buddhi Ram was also involved in the kidnapping. 5. First information report was lodged at Crime no.85/94 under Sections 363, 366Ka, 120B/506 I.P.C. Investigation was entrusted to Sub Inspector Naval Kishore Tiwari on 24.8.1994. The victim was recovered on 24.8.1994 from the house of Buddhi Ram where the accused appellants Surendra Pal and accused Jhingur were also found. 5. First information report was lodged at Crime no.85/94 under Sections 363, 366Ka, 120B/506 I.P.C. Investigation was entrusted to Sub Inspector Naval Kishore Tiwari on 24.8.1994. The victim was recovered on 24.8.1994 from the house of Buddhi Ram where the accused appellants Surendra Pal and accused Jhingur were also found. She was medically examined on 25.8.1994 wherein the doctor found pregnancy of two and a half months. No definite opinion could be given about rape as she was reported to be used to sexual intercourse. After X-ray, her radiological age was found above 18 years. Investigating Officer recorded the statement of the witnesses and prepared the site plan. After investigation, charge sheet was submitted against accused Surendra Pal and Jhingur under Sections 363, 366, 376 I.P.C. and against Budhi Ram under Section 368 I.P.C. The accused appellants were charged under Sections 366, 376, 368 I.P.C. who denied the charges and claimed trial. 6. In order to prove its case, the prosecution has produced P.W.1 Gyan Singh (complainant); P.W. 2-victim; P.W. 3 Dr. Ashok Kumar, Radiologist, who conducted X-ray of the victim; P.W. 4 Head Constable Sarvesh Chandra Agnihotri (formal witness); and P.W.5 Dr. Rekha Misra, who had medically examined the victim. Genuineness of the documents of the Investigating Officer was admitted by the learned defence counsel in the trial court. 7. In the statement under Section 313 Cr.P.C., the accused stated that he has been falsely implicated as he had given an application against Jangli, who is close to the complainant. 8. After appreciating the evidence on record, the learned trial court has recorded a finding of conviction against the accused. 9. Learned counsel for the appellant submits that the first information report was lodged on 24.8.1994 while the incident allegedly took place on 22.8.1994 at 11:00 P.M. No satisfactory explanation has been given with regard to delay in lodging of the first information report. It is further submitted that no independent witness has been produced in support of the prosecution case as it is stated in the first information report that Sarif and Jangli have seen the victim going with accused. It is further submitted that no independent witness has been produced in support of the prosecution case as it is stated in the first information report that Sarif and Jangli have seen the victim going with accused. It is further submitted that in the medical examination report, pregnancy of two and a half months was found by the doctor and no injury was found on body of the victim which is in contradiction to the statement of the victim wherein she has stated that she has suffered injuries. It is also stated by her that the report regarding pregnancy is false. It is further submitted that there are material contradictions in the statement of the victim which cannot be said to be wholly reliable; rather, her statement does not inspire confidence. 10. Per contra, learned Additional Government Advocate submits that the prosecution has successfully proved the case against the accused. It is also submitted that co-accused Jhingur, who was also convicted and sentenced by the learned trial court on the same set of evidence, has already undergone his full sentence. The appeal is devoid of any merit and is liable to be dismissed. 11. The first information report of the incident was lodged on 24.8.1994 at 8:00 a.m. It has been contended that the first information report was lodged with considerable delay. It is also contended that, in order to make out a case against the accused appellants, the report was lodged after the victim was recovered. The report was lodged with due deliberations. 12. According to P.W.1 Gyan Singh, his daughter was kidnapped by accused Surendra Pal and Jhingur in the night at about 11:00 P.M. on 22.8.1994. He requested them that they should not take her but they did not agree. Thereafter, he started searching his daughter. When he did not find her, then he lodged the first information report. In the first information report name of Buddhi Ram is mentioned wherein it is stated that Buddhi Ram is also involved in the incident. Reasonable explanation has been given by P.W. 1 for the delay in lodging the first information report. Thereafter, he started searching his daughter. When he did not find her, then he lodged the first information report. In the first information report name of Buddhi Ram is mentioned wherein it is stated that Buddhi Ram is also involved in the incident. Reasonable explanation has been given by P.W. 1 for the delay in lodging the first information report. At the same time, as per the statement of P.W.1, Gyan Singh, his daughter was recovered on 24.8.1994 at about 3:00 P.M. Although, there is a discrepancy in his statement - at one place he has stated that she was recovered in the morning but, in the cross-examination, he has specifically stated that she was recovered from the house of Buddhi Ram in the afternoon wherein Jhingur and Surendra Pal were also present. This statement finds support from the recovery memo which also contains the signature of Gyan Singh. 13. In Deepak v. State of Haryana, (2015) 4 SCC 762 , it was held by the apex court in paragraph 15 as under : "15. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in State of Punjab v. Gurmit Singh [ (1996) 2 SCC 384 : 1996 SCC (Cri) 316]." 14. In the case at hand, P.W.1, Gyan Singh has stated that he was searching his daughter. When she was not found, then he lodged the first information report. After lodging the report, the police recovered his daughter from the house of Buddhi Ram wherein accused appellant Surendra Pal along with Jhingur was also present. In the case at hand, P.W.1, Gyan Singh has stated that he was searching his daughter. When she was not found, then he lodged the first information report. After lodging the report, the police recovered his daughter from the house of Buddhi Ram wherein accused appellant Surendra Pal along with Jhingur was also present. This statement finds corroboration from the statement of P.W.2, victim wherein she has also stated that when she was dragged by Surendra and Jhingur, they took her to the sugarcane field wherein they have committed rape upon her. Thereafter, she was taken to the house of Buddhi Ram. The police recovered her from the house of Buddhi Ram and recovery memo was also prepared. It is further stated that she was taken to the house of Buddhi Ram on the next day in the afternoon. She was recovered from the house of Buddhi Ram on the third day in the afternoon. This fact finds support from the recovery memo as well as the statement of P.W.1 Gyan Singh. Hence, there was no unnecessary delay in lodging the first information report. The delay has been duly explained by P.W.1 Gyan Singh. 15. The whole prosecution story revolves through the statement of P.W.2 Victim. As far as the recovery is concerned, genuineness of the documents of the Investigating Officer has been admitted by the learned counsel for the defence wherein in Ext. -'Ka'-9, site plan, the house of Buddhi Ram is shown from where the victim was recovered. Hence, the recovery of the victim from the house of Buddhi Ram in presence of appellant Surendra Pal and accused Jhingur is duly established. 16. In the first information report, age of the victim is mentioned as 15 years. The radiological age of the victim is found as 18 years. The victim herself has given her age as 17 years in the statement recorded before the learned trial court on 2.7.1996, i.e. after about two years of the incident, meaning thereby that the victim has stated her age as 15 years. At no place any suggestion is given to the victim that her age is not 15 years; rather, she is a major and has attained majority. It shows that the victim was below 16 years at the time of the incident. At no place any suggestion is given to the victim that her age is not 15 years; rather, she is a major and has attained majority. It shows that the victim was below 16 years at the time of the incident. Keeping in view the age of the victim, now two points are to be considered: (1) whether the prosecution has successfully proved the factum of rape by appellant Surendra Pal, as alleged by the prosecution ? (2) whether the presumption as provided under Section 114-A of the Indian Evidence Act would be applicable in the matter ? 17. In State of Karnataka v. F. Nataraj, (2015) 16 SCC 752 it was held referring to Mohd. Ali v. State of U.P., (2015) 7 SCC 272 (paragraph 30) wherein it was held as under : "16. The learned counsel for the respondent further relied upon [Mohd. Ali v. State of U.P., (2015) 7 SCC 272 : (2015) 3 SCC (Cri) 82], wherein this Court recently held as follows: (SCC p. 282, para 30) "30. True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony." 18. In Raja v. State of Karnataka, (2016) 10 SCC 506 , it was held in paragraph 34 as under : "34. This Court in Raju [Raju v. State of M.P., (2008) 15 SCC 133 : (2009) 3 SCC (Cri) 751], while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114-A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113-A and 113-B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged." 19. In Bhupinder Sharma v. State of H.P., (2003) 8 SCC 551 , it was held in paragraph 12 as under : "12. To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. (See State of Maharashtra v. Chandraprakash Kewalchand Jain [ (1990) 1 SCC 550 : 1990 SCC (Cri) 210 : AIR 1990 SC 658 ].) Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance." 20. In the backdrop of the aforesaid legal proposition, now we have to examine the testimony of P.W.2 victim wherein she has stated that she was kidnapped by Surendra Pal and Jhingur from her house. The plea about lack of corroboration has no substance." 20. In the backdrop of the aforesaid legal proposition, now we have to examine the testimony of P.W.2 victim wherein she has stated that she was kidnapped by Surendra Pal and Jhingur from her house. When she resisted, her father, brother and sisters also got awakened. The accused threatened them with dire consequence. Thereafter she was taken to sugarcane field wherein she was raped by Surendra and Jhingur where after, on the next day, she was taken to the house of co-accused Buddhi Ram from where she was recovered. Evidence of P.W.2 victim is attacked on the ground that the doctor has found no injury on her body. Further, the doctor has found pregnancy of about two and a half months, which is denied by the victim herself. No specific sign of rape is found on body of the victim. Hence, the whole story of commission of rape is improbabilised. 21. P.W.5 Dr. Rekha Misra had medically examined the victim on 25.8.1994 at 1:30 p.m. wherein there is no mention of any physical injury on body of the victim and no opinion could be given about rape as she was used to sexual intercourse. Her vaginal smear was sent for examination of sperms. On the basis of this report, it is alleged that the victim had concocted the whole story. This assertion itself is unbelievable. Appellant Surendra Pal, in his statement under Section 313 Cr.P.C., has simply stated that he had given an application against one Jangli. Hence, he has falsely been implicated. So far as Jangli is concerned, he is known to P.W.1 Gyan Singh but this itself could not be a ground for false implication. No enmity has been alleged with the victim or her father. Even, no suggestion has been given to the victim that she has falsely implicated the accused due to enmity. It is admitted by the victim that Jangli used to visit the place of her father. 22. P.W.2 Victim had admitted that she had some abrasion on her buttock when she was dragged by the accused which are not mentioned in the injury report. Further, she has specifically denied the fact that she was pregnant by two and a half months, which has been mentioned by the doctor in her report. 22. P.W.2 Victim had admitted that she had some abrasion on her buttock when she was dragged by the accused which are not mentioned in the injury report. Further, she has specifically denied the fact that she was pregnant by two and a half months, which has been mentioned by the doctor in her report. Explanation has been given by the victim that demand of money was made by the doctor, which could not be fulfilled by the victim or her father. Hence, a wrong statement about pregnancy is made. This fact attains importance in the light that no suggestion was put to P.W.5 Dr. Rekha Misra in this regard by the prosecution. Dr. Rekha Misra has nowhere denied this assertion. It is submitted by P.W.2, victim that an application was also given to the higher authorities. P.W.1 Gyan Singh had also stated that the victim had not delivered any child or was aborted after the incident. Hence, absence of physical injury of the victim coupled with the factum of presence of two and a half months' fetus could not be a ground to disbelieve the testimony of the victim. 23. P.W.2 victim has specifically stated that she was raped by the appellant as well as Jhingur. In Deepak v. State of Haryana (Supra), it was held in para 24 as under: "24. In order to enable the court to draw presumption as contained in Section 114-A against the accused, it is necessary to first prove the commission of sexual intercourse by the accused on the prosecutrix and second, it should be proved that it was done without the consent of the prosecutrix. Once the prosecutrix states in her evidence that she did not consent to act of sexual intercourse done by the accused on her which, as per her statement, was committed by the accused against her will and the accused failed to give any satisfactory explanation in his defence evidence on this issue, the court will be entitled to draw the presumption under Section 114-A of the Evidence Act against the accused holding that he committed the act of sexual intercourse on the prosecutrix against her will and without her consent. The question as to whether the sexual intercourse was done with or without consent being a question of fact has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Evidence Act." 24. Age of the victim is below 16 years. There is a specific assertion that she was raped by the accused. Hence, presumption under Section 114-A of the Indian Evidence Act shall be drawn against the accused that the victim was not a consenting party. 25. P.W.1 Gyan Singh has specifically stated that when the victim was kidnapped, he made a request to accused Surendra Pal and Jhingur that her daughter should be returned to them but he did not agree. Thereafter, he searched her daughter and then lodged the report. P.W.2 has stated that some villagers were also collected at that time but not producing independent witnesses would not be fatal for the prosecution. In Hari Ram v. State of U.P., (2004) 8 SCC 146 , it was held in paragraph 22 as under : 22. As observed by this Court in State of Rajasthan v. Teja Ram [ (1999) 3 SCC 507 : 1999 SCC (Cri) 436 : AIR 1999 SC 1776 ] the over insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also. (See Sucha Singh v. State of Punjab [ (2003) 7 SCC 643 : 2003 SCC (Cri) 1697].) 26. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also. (See Sucha Singh v. State of Punjab [ (2003) 7 SCC 643 : 2003 SCC (Cri) 1697].) 26. Considering all the aspects of the matter, I am of the considered view that the trial court has properly appreciated the evidence on record and found the accused appellant Surendra Pal guilty of the offences punishable under Sections 366, 368, 376 I.P.C. and rightly convicted and sentenced him. Accordingly, the appeal is devoid of any merit. The prosecution has successfully proved the charges against the accused. 27. The appeal is liable to be dismissed and is dismissed. The judgment and order passed by the learned trial court is confirmed. 28. The appellant is in jail. He shall serve out the sentence as imposed by the learned trial court and confirmed by this Court.