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2021 DIGILAW 832 (ALL)

Gore @ Sushil v. State of U. P.

2021-08-09

AJAI TYAGI

body2021
JUDGMENT : AJAI TYAGI, J. 1. This appeal is directed against the judgment and order dated 4.5.2018, passed by learned Additional Sessions Judge, Court No. 4, Fatehpur, in Special Trial No. 37 of 2013 (State of UP vs. Gore @ Sushil) arising out of Case Crime No. 347 of 2013 under Sections 376, 354, 452, 506 IPC and Section 4 Protection of Children from Sexual Offences Act, 2012 (herein after referred to as ‘the POCSO Act, 2012’) P.S. Bindaki, District-Fatehpur, whereas the accused-appellant - Gore @ Sushil was awarded 3 years R.I. under Section 354 IPC, 5 years R.I. under Section 452 IPC, 3 years RI under Section 506 (2) IPC and 10 years RI under Section 4 of the POCSO Act, 2012, along with fine. 2. The brief facts of this appeal are that on 23.10.2013, the father of victim Ram Sanehi lodged an FIR at Police Station- Bindaki with averments that he resides in Delhi and does private service and he rarely comes at his native house at Fatehpur. At his residence, his wife resides with four daughters, one son and informant's aged mother. Gore son of late Pramod Kumar, who is of the same village often comes to the house of informant with intention he pressurize to make marital relationship with his elder daughter Kanchan, but when she refused to marry with him, he used to take his younger daughter, the victim for getting treatment at Kanpur as the victim was having white-spot on her leg. During the course of taking her to Kanpur for treatment, Gore committed rape with the victim and threatened her not to tell anybody, therefore, victim remained silent and Gore committed rape many times. Informant's elder daughter Kanchan alone ran away Mumbai and later on recovered from there. 3. Accused-appellant Gore @ Sushil was charged by the learned trial court under Sections 376, 452, 354, 506 (2) IPC and Section 4 of the POCSO Act, 2012. On finding guilty, learned trial court convicted and sentenced the appellant under Sections 452, 354, 506 (2) IPC and Section 4 of the POCSO Act, 2012. Aggrieved with the judgment of learned trial court, the appellant has preferred this appeal. 4. Heard learned counsel for the appellant, learned AGA for the State and perused the record. 5. Learned counsel for the appellant argued that in this case, accused has been falsely implicated. Aggrieved with the judgment of learned trial court, the appellant has preferred this appeal. 4. Heard learned counsel for the appellant, learned AGA for the State and perused the record. 5. Learned counsel for the appellant argued that in this case, accused has been falsely implicated. In medical examination, there is no corroboration of rape with the victim. It is argued that only motive behind the false implication of the appellant was that victim's parents wanted to marry their elder daughter Kanchan with appellant, but Kanchan fled away to Mumbai and when she was recovered, appellant refused to marry her. Due to this refusal, the accused was falsely implicated in this case. 6. Per contra, learned AGA argued that prosecution witnesses has supported the prosecution case. Victim was just 13 years of age, she has supported her version in her statement under Section 164 Cr.P.C. and appellant has rightly been convicted by the learned trial court. 7. Learned counsel for the appellant advanced arguments at length. First of all, it is argued that there was inordinate delay in lodging the FIR in this case. No date, time and place of occurrence is given in first information report by the informant. Victim's statement under Section 161 Cr.P.C. was recorded by the Investigating Officer after one month of filing FIR. First Information Report was lodged after three months of the alleged occurrence and no explanation is given by the prosecution for causing so mach delay in filing the FIR. 8. Learned counsel for the appellant argued that this delay in filing the FIR was fatal for prosecution case because there was enough time of three months with the informant and his family members to falsely implicate the accused-appellant and for that reason, after-thought story was made by them. In this regard, on perusal of the record, it is seen that as per victim's version, she was threatened by the appellant not to tell the incident to anybody otherwise she will be killed and her elder sister would be defamed. Prosecution witnesses have said that due to that fear, victim did not tell the occurrence to her family members soon after. Learned lower court also concluded in this regard that victim was just 13 years old child and it was natural for her to be scared when appellant intimidated her. Prosecution witnesses have said that due to that fear, victim did not tell the occurrence to her family members soon after. Learned lower court also concluded in this regard that victim was just 13 years old child and it was natural for her to be scared when appellant intimidated her. Apart from it, in such type of cases, family members of victim think twice before lodging the FIR because their social reputation remains at stake as held by Hon'ble Apex Court in State of Himanchal vs. Prem Singh, AIR 2009 SC 1090. Hon'ble Apex Court also held in Ram Das vs. State of Maharashtra, 2007 SCC 176 , State of Rajasthan vs. N.K. (2000) 5 SCC 30 and Malkhan Singh vs. State of U.P. (2000) 5 SCC 746 that if delay in filing the FIR is explained satisfactorily and statement of victim, who is best witness, is reliable then delay in lodging the FIR is not fatal. In this case also, keeping in view the tender age of the victim, it can be presumed that victim, just 13 years old, would have been scared when appellant intimidated her as stated by her as PW-2 that she will be killed if she tells the occurrence to anybody. 9. Hence, in my opinion, the prosecution has satisfactorily explained the delay in filing the FIR and that delay is not fatal to the prosecution case. As far as argument of appellant that no date, time and place was mentioned in the first information report, it is settled law that FIR is not encyclopedia, but it is information to set the law into motion. 10. Learned counsel for the appellant argued that appellant was falsely implicated in this case because as per prosecution case, victim was taken to Kanpur for treatment by appellant on 27.7.2013 and she was taken to Dr. Mamta Bhura, who was examined as PW-4. She has stated in her statement that victim came to her on 23.4.2013 and she gave her prescription for medicine. The prescription is also proved by her as Ex.ka4. Another prescription Ex.ka5 was also proved, which is of dated 10.6.2013. Hence, as per statement of PW-4, there was no prescription of 27.7.2013, on which date, appellant is said to take the victim to Kanpur for treatment. 11. Learned counsel for the appellant further argued that in fact, the father of victim borrowed Rs. Another prescription Ex.ka5 was also proved, which is of dated 10.6.2013. Hence, as per statement of PW-4, there was no prescription of 27.7.2013, on which date, appellant is said to take the victim to Kanpur for treatment. 11. Learned counsel for the appellant further argued that in fact, the father of victim borrowed Rs. 26,000/- from the appellant for marriage of his daughter Vineeta and mortgaged his one and a half bigha agricultural land with him. Father of victim did not return the above Rs. 26,000/- to the appellant and for that reason and to pressurize him to get married with his elder daughter Kanchan, accused-appellant was falsely implicated. 12. In this regard, it is clear from the record that treatment of victim in Kanpur was not denied by defence. Prescription from PW-4 proved the fact that victim was under treatment with PW-4 in Kanpur. As per prosecution version, appellant used to take victim to Kanpur for treatment and on 27.7.2013, he stayed in a guesthouse/dharmshala with the victim where at night, he committed rape with the victim as the victim has stated in her statement under Section 164 Cr.P.C. and supported this statement before learned trial court as PW-2. Victim's statement under Section 164 Cr.P.C. corroborated the statement given by victim as PW-2. In that statement, she categorically stated that on 27.7.2013, she went to Kanpur with appellant and they went to Dr. Mamta Bhura and after that they returned to dharmshala where appellant has taken a room on rent and at night he committed rape with her. Prosecution has examined the Accountant (PW-9 Rajesh Mishra) of said guesthouse/ dharmshala. PW-9 appeared before learned trial court with relevant record of guest-house and said that he was posted as Accountant in that guest-house. On 27.7.2013 at about 8:30 p.m., one boy Sushil came to his guest-house with a girl. They had come for getting treatment and said that they were brother and sister and he got allotted Room No. 14 on rent. Next day, i.e. 28.7.2013, at about 8:00-8:30 in the morning, they checked out. Room rent was paid by Sushil. PW-9 filed receipts of rent and check out as Ex.ka 17-18 and also filed the copy of relevant register in the court in which entries of check-in and check-out were recorded. Next day, i.e. 28.7.2013, at about 8:00-8:30 in the morning, they checked out. Room rent was paid by Sushil. PW-9 filed receipts of rent and check out as Ex.ka 17-18 and also filed the copy of relevant register in the court in which entries of check-in and check-out were recorded. Hence, with this evidence, prosecution proved the fact that on 27.7.2013, appellant took the victim to the guest-house and stayed there for one night. Hence, the argument of counsel for the appellant that he was falsely implicated fails because it is very well proved by the prosecution that on the said date of occurrence, appellant was there in guest-house with the victim. Therefore, it hardly matters if there is no medicine prescription of 27.7.2013. So it cannot be believed that accused was falsely implicated by the informant just for the reason that he did not want to return the borrowed Rs. 26,000/-. Moreover, when he had already mortgaged his agricultural land with the appellant, it can not be believed that a person will falsely implicate somebody with the rape allegation with his daughter or just to pressurize him to get married with his elder daughter. 13. Learned counsel for the appellant raised argument with force that in medical examination, no injury was found on the private part of the victim and there was no sign of rape. In this regard, learned counsel for the appellant referred to the medical report of the victim. The medical examination of the victim was conducted by Dr. Laxmi Singh, who was posted at CHC, Bindaki, Fatehpur. Learned counsel for the appellant said that Dr. Laxmi Singh was examined as PW-5 and she had said in her report that there was no injury on body and private part of the victim and she had given her opinion that during medical examination, she found no sign of rape or intercourse. Learned counsel for the appellant argued that in such a situation, prosecution case is not at all supported by medical evidence. Hence, on this score alone, appellant is liable to be acquitted. In his support, counsel for the appellant referred the judgment of Hon'ble High Court of Sikkim in Sandeep Tamang vs. State of Sikkim, 2016 Cr. Learned counsel for the appellant argued that in such a situation, prosecution case is not at all supported by medical evidence. Hence, on this score alone, appellant is liable to be acquitted. In his support, counsel for the appellant referred the judgment of Hon'ble High Court of Sikkim in Sandeep Tamang vs. State of Sikkim, 2016 Cr. L.J. 4706 and said that in this case also, the prosecution allegation of rape was not supported by medical report of the victim and Hon'ble High Court of Sikkim, gave acquittal to the accused. In this regard, it is very much material that Dr. Laxmi Singh PW-4, who conducted the medical examination of the victim said in medical report that there was no injury on external or private part of the victim and in supplementary report, Ex.ka7, it is said that no living or dead spermatozoa was seen in the provided sewer-slide. It is worth keeping in mind that victim's medical examination was conducted approximately after three months of the said occurrence. As per medical jurisprudence, living spermatozoa may be found up to 48 hours or dead spermatozoa may be found up to 72 hours after intercourse. 14. PW-2, the victim, in her statement before learned trial court, had stated that on 27.7.2013, appellant had taken her to guest-house where he took one room on rent and in the night, he committed rape with her and threatened her not to tell anybody. The same statement, victim had given to Investigating Officer earlier under Section 161 Cr.P.C and before the Magistrate under Section 164 Cr.P.C. Her statement before learned trial court remained intact. Prosecution could not make any case in cross-examination, which have assailed the examination-in-chief of victim (PW-2). In examination-in-chief, defence could not extract anything which could have been fatal for prosecution case. It is settled law that if victim's statement is intact and fully reliable, conviction can be based on her statement alone even if it is not corroborated by the medical evidence. 15. Hon'ble Apex Court in Wahid Khan vs. State of Madhya Pradesh, 2010 (2) SCC 9 has held that evidence of prosecutrix stands on equal footing with that of injured witness and if her evidence inspires confidence, corroboration is not necessary. 15. Hon'ble Apex Court in Wahid Khan vs. State of Madhya Pradesh, 2010 (2) SCC 9 has held that evidence of prosecutrix stands on equal footing with that of injured witness and if her evidence inspires confidence, corroboration is not necessary. In State of Haryana vs. Basti Ram, AIR 2013 SC 1307 , Hon'ble Apex Court held that if uncorroborated statement of prosecutrix is credible, conviction can be based on it. In this case, Hon'ble Apex Court after discussing the entire long issue concluded that law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. 16. In another case, Sri. Narayan Saha vs. State of Tripura, (2004) 7 SCC 775 , there was also the position that doctor, conducting the medical examination of the victim, could not give definite opinion about the rape, but it was held of no consequence in view of unimpeachable evidence of the victim. The same position is with this case in hand. In this case also, doctor conducting medical examination of the victim could not give definite opinion about rape, but the testimony of the victim inspires full confidence and her evidence before learned trial court is unimpeachable. Hence, accused-appellant cannot get any benefit of the fact that there was no definite opinion of rape in medical report as testimony of prosecutrix is fully reliable and worth believing. Therefore, reliance can be placed on her testimony without any doubt. 17. There was allegation under Section 354 IPC against the accused-appellant also. The victim (PW-2) said in her statement that on 28.9.2013, accused came to her house and molested her by pressing her breast and on her crying, her mother came there and the accused fled away. Ramkali (PW-3), who is mother of victim is also eye-witness of this fact. She also said in her statement that approximately before three years from the date of making the statement before learned trial court, she was working inside her house and victim was standing in court-yard. At that time, accused-appellant entered her house and started molesting the victim. On victim's crying, she went there and saw herself accused- appellant molesting the victim. Therefore, both PW-2 and PW-3 corroborated their statements. At that time, accused-appellant entered her house and started molesting the victim. On victim's crying, she went there and saw herself accused- appellant molesting the victim. Therefore, both PW-2 and PW-3 corroborated their statements. On this point also, defence could not extract anything in cross-examination, which could assail their credibility. 18. Lastly, learned counsel for the appellant stated that accused has no criminal history. In my opinion, this case is not the case where criminal history of the accused is relevant. There is charge of rape and molestation against the appellant. Hence, having or not having criminal history is not at all relevant in such type of cases. 19. No other argument was raised on behalf of appellant. 20. Hence, with the above observations, I am of the considered view that prosecution was very well succeeded in proving its case beyond doubt and learned trial court has rightly convicted and sentenced the accused-appellant for the charges levelled against him. 21. In view of above, I find no merit in this appeal. 22. Appeal is dismissed, accordingly.