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2018 DIGILAW 1737 (ALL)

Chhangu Passi v. State of U. P.

2018-08-07

RAM SURAT RAM (MAURYA), SIDDHARTHA VARMA

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JUDGMENT & ORDER : Ram Surat Ram (Maurya), J. Heard Sri K. K. Mishra for the appellant and Sri Pankaj Saxena AGA- 1st, for State of U.P. 2. Chhangu Passi, (the appellant) has filed the present appeal from his conviction and sentence passed by Additional Sessions Judge, Court No. 2, Kaushambi dated 4.3.2009 in S.T. No. 71 of 2004, arising out of Case Crime No. 25 of 2004, under Section 376 IPC, P.S. Pipari, Distt. Kaushambi convicting him under Section 376 IPC and awarding sentence of imprisonment for life with fine of Rs. 10,000/- and in default stipulation three months additional sentence. 3. On the written complaint (Ex-Ka-1) of Rampat Passi (PW-2), FIR (Ex- Ka-9) of Case Crime No. 25 of 2004 was registered under Section 376 IPC at P.S. Pipari, distt. Kaushambi on 20.2.2004 at 20:35 hours against the appellant Chhangu Paassi. It has been stated by the first informant that he was resident of Rasoolpur Buer, P.S. Pipari, Distt. Kaushambi. In the morning of the incident, he along with his elder brother Srinath went to dig the foundation of Lalau, resident of his village. His wife Smt. Kushalta went for taking fodder along with Janki daughter of Srinath. At about 4:30 PM Chhangu Passi son of Daulat resident of his village came to his house and tell his daughter Km. Seema aged about 8 years that your mummy was calling to you. On his asking his daughter Km. Seema went along with Chhangu Passi. Thereafter Chhangu Passi took his daughter in the arhar field of Ram Sajiwan lying in the north side of his village and committed rape with her. Due to which his daughter had become unconscious. Thereafter Chhangu Passi ran away from the spot leaving his daughter in unconscious position on the spot. After some time, when children of the village found his daughter lying in unconscious position in arhar field then they informed his sister in law at her house on which his sister in law brought his daughter Seema in her lap, in unconscious position. When his daughter regained consciousness then on asking she stated that Chhangu Passi had committed rape with her. 4. After registration of the case, the Police sent the victim Km. Seema, (PW-1) for medical examination along with Constable Raj Pal. When his daughter regained consciousness then on asking she stated that Chhangu Passi had committed rape with her. 4. After registration of the case, the Police sent the victim Km. Seema, (PW-1) for medical examination along with Constable Raj Pal. Doctor Chandra Prabha Deewan (PW-4) conducted the medical examination of the victim on 20.2.2004 at 23:30 and prepared injury report (Ex Ka 2). In the injury report, it has been mentioned that hymen was fresh torn, bleeds on touch. Injury present on post commission 6 o'clock position, bleeds on touch, tender. Vaginal smear was taken for histopathological examination of sperm & GC. The victim was referred for X-ray examination. After X-ray report supplementary medical report (Ex-Ka-3) was prepared in which age of the victim was mentioned as 07 years old as epiphysis distal radius and ulna were not united. Pissiform not appeared. All other seven bones (carpal) were present. The doctor has opined that injury was caused by blunt object within one day. 5. After registration of FIR, S.I. Vijay Rai (PW-5) started investigation. He obtained a copy of check FIR and recorded statement of Head Moharrir Suresh Mishra and first informant as well as victim, her mother Smt. Kushalta. On the next day i.e. 21.2.2004, he visited the spot and made spot inspection and prepared site plan (Ex Ka 4) on pointing out of first informant Rampat Passi (PW-2). Thereafter he recorded statement of children Janki Devi and Anil Kumar, who have given information that Km. Seema was lying in the arhar field of Lalchandra in unconscious position and other witnesses. He took plain and blood stained earth from the spot and prepared recovery memo (Ex Ka 8). Later on blood stained clothes of the victim were also handed over to him and recovery memo (Ex-Ka -7) was prepared. He tried to apprehend the accused but the accused was absconding. Therefore, proceeding under Section 82 and 83 Cr P C was taken against the accused on 24.2.2004. Thereafter accused surrendered before the court below on 19.3.2004 and taken into custody. However in the meantime, S.I. Vijay Rai (PW-5), the Investigating Officer was transferred and investigation was undertaken by S.I. Jaipal Singh (PW-6), who recorded the statement of the witnesses and after recording the statement of the accused, he submitted charge sheet (Ex-Ka 10). Thereafter accused surrendered before the court below on 19.3.2004 and taken into custody. However in the meantime, S.I. Vijay Rai (PW-5), the Investigating Officer was transferred and investigation was undertaken by S.I. Jaipal Singh (PW-6), who recorded the statement of the witnesses and after recording the statement of the accused, he submitted charge sheet (Ex-Ka 10). Report of Forensic Laboratory was also obtained and was filed in the Court in which sperm of human was found on the underwear of the victim. Blood was also found on the underwear as well as shirt of the victim. 6. On committal, the case was registered as ST No. 71 of 2004. Additional Sessions Judge framed charges against the appellant on 19.4.2005. The appellant denied the charges and claimed trial. In order to prove the charges, the prosecution examined Km. Seema (PW-1), the victim, Rampat Passi (PW- 2), the first informant and father of the victim, Smt. Kewali (PW-3), Tai of the victim, Dr. C.P. Deewan (PW-4) to prove the medical report, SI Vijay Raj (PW- 5) and SI Jai Pal Singh (PW-6), the Investigating Officers. 7. Km. Seema (PW-1) in her statement has stated that on the date of incident, Chhangu Passi took him on the pretext to go to her mother. She recognized the accused person in the Court and confirmed that Chhangu Passi had committed rape with her. After the act, when blooding was started from her private part, which was stained in her shirt as well as underwear, then Chhangu Passi ran away from the spot. Thereafter she had become unconscious. After hearing her cry, Anil and Mukesh came on the spot. Anil was trying to lift her but she fell down. Then Anil had called his badi amma, who took her in her lap to the house. After sometimes, his uncle, father and mother came to her house and she told them about her rape committed by Chhangu Passi. Thereafter she was medically examined. In cross-examination, Km. Seema (PW-1) has stated that she had given statement as told by her father. She had one brother and one sister. Brother was elder to her and sister was younger to her but she could not tell about their age. She also could not tell the age of Anil and Mukesh. She could not meet with Anil and Mukesh after the incident. She had one brother and one sister. Brother was elder to her and sister was younger to her but she could not tell about their age. She also could not tell the age of Anil and Mukesh. She could not meet with Anil and Mukesh after the incident. She could not meet with her badi amma after the incident. She could not tell the age of her badi amma. She could not tell that how many children Chhangu Passi had. She could not tell that how many brothers Chhangu Passi had. She could not tell the name of the wife of Chhangu Passi. Name of father of Chhangu Passi was Daulat, which was told by her father. On the date of incident, she also went along with her mother for taking fodder. She could not meet Chhangu Passi before or after the incident. Before committing rape, Chhangu Passi had never met with her. She did not wear chaddi, bushart rather she used to wear salwar-samiz. She did not remember as to when her father took her to the police station. She could not inform as to who had gone to police station along with her. She received injury as such there was blooding. That injury was received to her at the time when she went along with her mother. She had become unconscious after receiving the injury and regained consciousness after 2-3 days. When she become conscious, she could not tell what had happened with her. The blood caused by the injury was wiped off by her mother. No one had committed any misconduct with her. But she had specifically denied that Chhangu Passi had not committed rape with her or she was giving false statement against Chhangu Passi due to tutoring by any one. 8. Rampat Passi (PW-2) has stated in his statement that on 20.2.2004, he along with his brother Srinath went to dig the foundation of house of Lalau resident of his village. His wife along with Janki went to take fodder. At about 4:30 PM, Chhangu Passi went to his house and told his daughter that her mummy was calling to her. Rampat Passi (PW-2) has stated in his statement that on 20.2.2004, he along with his brother Srinath went to dig the foundation of house of Lalau resident of his village. His wife along with Janki went to take fodder. At about 4:30 PM, Chhangu Passi went to his house and told his daughter that her mummy was calling to her. Thereafter his daughter went along with Chhangu Passi, who took his daughter in the arhar field situated in north of village, where Chhangu Passi committed rape with her daughter and when she had become unconscious then Chhangu Passi ran away from the spot leaving his daughter in unconscious position. After some time, children of the village went in arhar field and found his daughter in unconscious position then they informed his sister in law on which his sister in law brought his daughter Km. Seema to the house in her lap. After regaining consciousness, his daughter had informed him about the incident of rape committed by Chhangu Passi in the field of Nandlal. He himself had scribed the complaint given at the police station on which FIR was registered. In cross-examination, he has stated that on 27.2.2004, he handed over the shirt and underwear of the victim Km. Seema to the Investigating Officer, which she was wearing at the time of incident of which recovery memo (Ex-Ka 7) was prepared. The Investigation Officer prepared site plan on his pointing out on 21.2.2004. In the FIR, inadvertently, place of occurrence was shown as arhar field of Sajiwan Passi although it was arhar field of Nandlal. He denied that there was any dispute between him and the accused in respect of burying the dead body of Chaitu, his grand father. He denied that there had been any dispute between Chhedi Lal, his father and father of the accused in respect of any land. 9. The prosecution has examined Smt. Kewli (PW-3), Tai of the victim. She had stated that on the date of incident at about 5:00 PM, at the time when she was collecting kandi then some children of the village informed her that Seema, was lying in arhar field in unconscious position. Then she went there and saw that underwear of Seema was drenched with blood. Thereafter she took Seema to her house. At that time Seema was not in a position to talk. Then she went there and saw that underwear of Seema was drenched with blood. Thereafter she took Seema to her house. At that time Seema was not in a position to talk. When her mother came then she informed that Chhangu Passi had committed rape with her. In cross-examination she had stated that frock and underwear of Seema was drenched with blood and blood was also present on earth. When Seema was brought to the house then after two hours she regain her consciousness. At that time crowd had been collected at her house and Dwarika, uncle of Chhangu Passi had also come there. She was cross-examined but she supported the fact that Seema was lying in unconscious condition in the arhar field of Nandlal and was brought by her to the house. 10. Dr. Chandra Prabha Deewan, (PW-4) was examined to prove the injury report (Ex Ka -2). She clearly stated that injury was caused by blunt object which was possibly coming while being raped. The prosecution has examined SI Vijay Rai (PW-5) and SI Jai Pal Singh (PW-6) to prove the investigation and charge sheet. 11. After completion of evidence of the prosecution, all incriminatory facts and materials were put to the appellant under Section 313 CrPC. He denied evidence and materials and has stated that he was falsely implicated due to enmity relating to land dispute but he did not adduce any evidence in respect of his defense. 12. After hearing the parties, Additional Sessions Judge by the impugned judgment found that charges against the appellant have been proved from the statement of Km. Seema (PW-1), whose statement was fully corroborated with the medical report, supplementary medical report as well as forensic laboratory report. There was nothing to show that the first informant had any motive of false implication. Accordingly he convicted the appellant under Section 376 IPC and sentenced the appellant as mentioned above. Hence, this appeal has been filed. 13. We have considered the arguments of counsel for the parties and examined the record. The counsel for the appellant has given much emphasis upon the cross-examination of Km. Seema (PW-1) the victim in which she had stated that she had given statement on tutoring of her father and she was never meet with Chhangu Passi before the incident of rape. We have considered the arguments of counsel for the parties and examined the record. The counsel for the appellant has given much emphasis upon the cross-examination of Km. Seema (PW-1) the victim in which she had stated that she had given statement on tutoring of her father and she was never meet with Chhangu Passi before the incident of rape. He submits that statement given by the victim in examination in chief is tutored statement and no reliance can be placed on it. She has stated that she had received injury when she had gone with her mother. The injury was caused from blunt object. The charges against the appellant under Section 376 IPC is not proved. From the medical report (Ex Ka 2 & Ka -3) it is fully proved that Km. Seema received injury in her vagina on 20.2.2004. From Forensic Laboratory report, it was also proved that sperm of human was present on the underwear of Km. Seema. Thus suggestion of the counsel for the applicant that injury was received in any other manner and Seema was not raped, is not liable to be accepted inasmuch as if injury was received in any other manner then there was no occasion that sperm of human found on the underwear of the victim. Thus from the medical evidence also it is fully proved that victim was raped. 14. In examination in chief Km. Seema, (PW-1) the victim has fully supported the prosecution story and has stated that Chhangu Passi, the appellant had taken her to arhar field on the pretext that her mother was calling her, where he had committed rape with her due to which she had become unconscious. Although she had stated in cross-examination that this statement was given by her as tutored by her father but in the end she had specifically denied that it was incorrect to say that Chhangu Passi had not committed rape with her. The victim was an eight years old girl at the time of incident and if some questions were answered in the manner on which the questions were put to her in cross examination then on that basis her statement was not liable to be disbelieved. Her statement was fully supported with the medical evidence. 15. The victim was an eight years old girl at the time of incident and if some questions were answered in the manner on which the questions were put to her in cross examination then on that basis her statement was not liable to be disbelieved. Her statement was fully supported with the medical evidence. 15. After the incident, when children of the village had informed Smt. Kewali (PW-3) that Seema, the victim was lying in an unconscious position in the arhar field of Nandlal then Smt. Kewali (PW-3) brought Seema to her house. After regaining consciousness, Km. Seema had informed that Chhangu Passi had committed rape with her and thereafter FIR of the incident was promptly lodged at 20:35 hours on that very day. Although distance of Police Station from the place of occurrence is 13 Kms. The victim was medically examined in the night itself at 23:30 hours in which injury on her private part was found. Thus the evidence of Rampat Passi (PW-2) and Smt. Kewali (PW- 3), which are corroborative evidence of fact subsequent to the incident are fully proved. Although the appellant had tried to suggest that he had been falsely implicated due to land dispute but no paper relating to land dispute was filed before the court below. So far as the dispute relating to burying of dead body of Chaitu is concerned, Rampat Passi (PW-2) has specifically denied that no such dispute was ever raised. Thus there was no reason for false implication of the appellant. In view of the aforesaid facts, we do not find any illegality in the judgment of the Court below in convicting the appellant under Section 376 IPC. 16. So far as sentence is concerned, it has come on record that appellant is a married man having small children. The appellant has no criminal history. As such looking to the aforesaid facts life imprisonment is converted into the imprisonment of 15 years and fine of Rs. 10,000/- is enhanced to Rs. 20,000/-. 17. In the results, the appeal is partly allowed. The conviction of the appellant under Section 376 IPC is affirmed. The appellant is sentenced for 15 years imprisonment with fine of Rs. 20,000/-. In case of default, in payment of fine additional sentence of three months will be served by the appellant. On deposit of the aforesaid fine, it shall be paid to the victim. The conviction of the appellant under Section 376 IPC is affirmed. The appellant is sentenced for 15 years imprisonment with fine of Rs. 20,000/-. In case of default, in payment of fine additional sentence of three months will be served by the appellant. On deposit of the aforesaid fine, it shall be paid to the victim. The period already undergone shall also be adjusted as per Rules.