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2019 DIGILAW 451 (ALL)

Chhangu @ Sati Shankar Kewat v. State Of U. P.

2019-02-20

SIDDHARTH

body2019
ORDER : Siddharth, J. 1. Heard Sri Kamlesh Kumar Tripathi, learned counsel for the appellant and the learned AGA for the State. 2. This criminal appeal has been preferred against the judgment and order dated 21.11.2014 passed by the learned Additional Session Judge, Court no.4, Kanpur Dehat in Sessions Trial No.255 of 2012, State of U.P. Vs. Chhangu @ Sati Shankar Kewat, arising out of Case Crime No.69 of 2011, under Sections 376(2)(i) IPC, Police Station Satti, District Kanpur Dehat convicting the appellant under Section 376(2)(i) and sentencing him to undergo 10 years Rigorous Imprisonment along with fine of Rs.15,000/-and further directed to undergo three months additional imprisonment in case of failure in depositing the fine imposed. 3. The prosecution case in short is that the daughter of the informant aged about 6 years was playing outside her house on 05.10.2011. Her mother was in the house. The informant had gone to hear religious discourse at about 4 p.m. Her daughter was taken by Chhangu @ Sati Shankar Kewat by giving her 'namkin and toffee' and committed rape. Her private parts were torned and she was in pool of blood. Accused came out of his house consoling his daughter, who was crying and after listening to her cries his wife and Kesari Lal son of Shiv Kumar and Kulbhushan son of Lal ji and other villagers gathered and then accused leaving his daughter ran away. Due to extensive bleeding and pain to his daughter he could not lodge the report on the same day and thereafter on the next day the report was lodged as case crime no.69 of 2011, Police Station Satti, District Kanpur Dehat under Section 376, 452 I.P.C. During investigation the victim was sent for medical examination. The statement of witnesses were recorded by the Investigating Officer, who prepared the site plan and submitted charge-sheet on 17.10.2011 against the accused. After committal of the case, the Trial Court framed charges under Section 376(2) (i) I.P.C on 17.11.2012 against the accused. The accused denied the charges and sought trial. 4. Before the trial court the victim was produced in evidence but she could not reply to the questions except telling the name of her father and whether it is day or night today. The victim was found to be unable to reply the questions asked before the Court. 5. The accused denied the charges and sought trial. 4. Before the trial court the victim was produced in evidence but she could not reply to the questions except telling the name of her father and whether it is day or night today. The victim was found to be unable to reply the questions asked before the Court. 5. The statement of the informant was recorded as PW 1 and he stated that the incident took place at about 4.00 p.m. He had gone to attend the religious discourse (Akhand Ramayana) which was being held outside the village. When he came back along with Keshari Lal and Kulbhushan and reached at the door of the accused he was consoling his daughter who was crying, when he took his daughter in lap accused ran away. The vagina of the victim was full of blood and torned. He went in search of the accused but he was not found on the date of the incident. Pradhan and other persons of the village were trying to get the compromise done, therefore, he did not go to the police station. On the next day he lodged the first information report and his daughter was sent for medical examination and treatment. He did not saw the accused committing the alleged offence but he enticed away her daughter on the promise of 'namkin and toffee', this was told by the niece of the accused. The niece of the accused was aged about 5 years. The witnessed was cross-examined but nothing was found which may falsify the prosecution case. 6. The mother of the victim was examined as PW II. She stated that the niece of appellant, namely, Anajni Devi, came to her and informed that her uncle Chhangu is giving toffee to the victim inside the room after bolting the door from inside. She went to the house of Chhangu and the accused on seeing her ran away, her daughter was lying in pool of blood. Lots of persons had gathered and people of the village were saying that she should enter into compromise and therefore, the report could not lodged on the same day. On the next date her daughter was medically examined after registration of the first information report. She denied the suggestion that the injury was result of any accident. 7. Lots of persons had gathered and people of the village were saying that she should enter into compromise and therefore, the report could not lodged on the same day. On the next date her daughter was medically examined after registration of the first information report. She denied the suggestion that the injury was result of any accident. 7. The brother of the informant was examined as P W III, who repeated the statement given by PW I. 8. Dr. Manisha Tewari was examined as PW IV, who proved that on 7.10.2011 she examined the victim at 2.30 p.m when she was brought by lady constable Meera Tewari. She stated that the medical examination of the private part of the victim was done under general anesthesia and bleeding was present over vulva posterior from 4 o'clock to 8 o' clock position spread upto anus. Hymen was torned from 3 o'clock to 7 o'clock position. Vagina torned posteriorly extending up to 3.5 c.m towards fornix. In the pathology report no dead or alive spermatozoa was found. As per ultrasound report there was no internal damage. The age of the victim was determined as four years. In suggestion Doctor admitted injury by blunt object like penis. The duration of injury was found between 24 to 48 hours. The Investigating Officer and the other formal witnesses proved the documents regarding registration of first information report and the investigation conducted by the Investigating Officer. 9. The statement of the accused under section 313 Cr.P.C was recorded and he denied the entire allegations. He stated that the statement of the witnesses are absolutely false and charge-sheet was falsely submitted against him. The prosecution was stated to be result of enmity. 10. Two defence witnesses DW 1, Suresh Babu and DW II, Chandra Kali were examined. They only stated and brought evidence on record to prove that the accused was minor at the time of offence. However, by the order dated 24.04.2012 the Juvenile Justice Board, Rama Bai Nagar, found the accused to be major aged about above 18 years, six months. No other defence was taken before the Court below. 11. Learned counsel for the appellant has stated that the prosecution failed to prove its case beyond doubt. The medical evidence does not supports the prosecution case. The conviction of the appellant under Section 376(2)(i) I.P.C is unjustified. No other defence was taken before the Court below. 11. Learned counsel for the appellant has stated that the prosecution failed to prove its case beyond doubt. The medical evidence does not supports the prosecution case. The conviction of the appellant under Section 376(2)(i) I.P.C is unjustified. The appellant was wrongly declared major and regarding declaration of his minority Criminal Revision No.1312 of 2014 was filed before the court but he has been convicted in the meantime. The witnesses for prosecution were interested witnesses and the first information report was lodged after about 24 hours without their being any explanation. No semen was found in the pathological report. The appellant was falsely implicated on account of village politics. 12. On the behalf of the State, learned AGA has submitted that it is a case of rape of an innocent child of four years and the prosecution has succeeded in proving its case beyond doubt. The medical evidence on record fully proved the alleged offence against the appellant. There is no ground for taking lenient view in favour of the appellant. The medical report of the victim conclusively proved the alleged offence. Doctor had admitted causing of such injury by hard and blunt object like penis. There are no mitigating circumstances in this case. It is a case of most henious nature, which has not only caused bodily injury to the child victim but also psychological damage, which will not be repaired throughout her life. The defence has not been able to prove any enmity with the informant. The only plea of minority of the appellant was also turned down by the Juvenile Justice Board and then by the Appellate Court. He has supported the conviction and sentence awarded the appellant and stated that its deserves to be confirmed. 13. The defence has not been able to prove any enmity with the informant. The only plea of minority of the appellant was also turned down by the Juvenile Justice Board and then by the Appellate Court. He has supported the conviction and sentence awarded the appellant and stated that its deserves to be confirmed. 13. This Court after going through the record of the case containing the documentary as well as oral evidence of the witnesses for the prosecution as well as the defence, finds that the alleged offence was fully proved by the prosecution on the basis of the oral evidence and the documentary evidence in the form of medical report and the material collected by the Investigating Officer in, site plan and the statement of witnesses under Section 161 Cr.P.C. The victim was aged about 4 years at the time of incident and the injuries caused to her private party conclusively proved, the offence alleged against the appellant. The plea of juvenility of the accused was turned down by the Juvenile Justice Board as well as Lower Appellate Court and Court does not finds any motive of false implication or revenge on record, which may have led to false implication of the appellant. The plea of injury caused to the child victim by accident was taken but has not been proved by the defence. There is no perversity in the findings of the Court below nor any material evidence has not been considered by the Court below which may warrant interference in the judgment and order of the court below by this Court. 14. This appeal has no merit. The judgment and order dated 21.11.2014 of the Court below is confirmed. This appeal is dismissed. 15. Office is directed to communicate this order to the Court concerned for compliance forthwith and to send back the Lower Court Record within two weeks.