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2022 DIGILAW 44 (ALL)

Bhao Prakash v. State of U. P.

2022-01-07

ARVIND KUMAR MISHRA I, JAYANT BANERJI

body2022
JUDGMENT : 1. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record of this appeal. 2. By way of instant criminal appeal, challenge has been made to the judgment and order of conviction dated 05.08.2010 passed by Additional Sessions Judge, Court No.5, Bareilly, in Session Trial No.174 of 2008, State Vs. Bhao Prakash, arising out of Case Crime No.964 of 2007, under Section 376 I.P.C., Police Station Nawabganj, District Bareilly whereby the appellant has been sentenced to imprisonment for life coupled with fine Rs.1,00,000/-with default stipulation to suffer additional imprisonment for one year. 3. Facts as incarnated refers to the context that the first information report was lodged by one Veerwati (mother of the victim) and (wife of the accused-appellant), resident of Bahor Nagla, Police Station Nawabganj, District Bareilly against the accused-appellant on 14.09.2007 at 2:25 p.m. regarding the incident of rape having been committed by the accused-appellant who is none other than father of the victim wherein it was described that on 03.08.2007 around 11:00 p.m. up to 12:00 in the midnight, the accused-appellant came to the house in drunken condition and took away forcibly his daughter in his room who was sleeping with her grand-mother Durga Devi, and committed rape upon her. The incident was witnessed apart from the informant by the grand-mother Durga Devi. It so happened that the accused-appellant (husband of the informant) did not let her go to the police station for lodging the first information report instead beat the informant and ousted from his house in the following morning due to which the informant along with her children began to reside at her parental home at Mudiya Gagroop, Police Station Bhuta, District Bareilly and she did not whisper about the incident to anyone on account of public disrepute but she has been compelled by circumstances to lodge the first information report against the accused-appellant at this stage, which was scribed by Harish Kumar son of Lal Ram. This written report is Ext. Ka-1. 4. Record reflects that contents of this written report (Ext. Ka-1) were taken down in the concerned Check FIR at Case Crime No.964 of 2007 under Section 376 I.P.C., Police Station Nawabganj, District Bareilly, on 14.09.2007 at 2:25 p.m. Check FIR is Ext. Ka-4. This written report is Ext. Ka-1. 4. Record reflects that contents of this written report (Ext. Ka-1) were taken down in the concerned Check FIR at Case Crime No.964 of 2007 under Section 376 I.P.C., Police Station Nawabganj, District Bareilly, on 14.09.2007 at 2:25 p.m. Check FIR is Ext. Ka-4. Consequently, relevant entries were made in the concerned general diary at Serial No.30 at 2:25 p.m. on 14.09.2007 and case was registered on 14.09.2007 under the aforesaid section of I.P.C. at aforesaid case crime number against the accused-appellant. G.D. entry is Ext. Ka-5. 5. Record further reveals that the investigation ensued and during course of the investigation, the victim was produced for medical examination before Dr. P.L. Sharma, Medical Officer, on 15.09.2007 wherein upon internal medical examination, no mark of injury was seen on the private part of the victim. Vagina admitted one finger, rarely admitted two fingers, apart from other symptomatic analysis, no definite opinion could be given regarding commission of rape upon the victim. The age of the victim was assessed to be around 15 years. The medical examination report is Ext. Ka-2. Supplementary medical report which has been proved by Dr. P.L. Sharma PW-2 is Ext. Ka-3. 6. As the investigation proceeded it was taken over by Ram Prakash Singh Rathore PW-9, who took note of the relevant entry made in the Check FIR, concerned general diary and recorded statement of Constable Vijay Pathak, the informant Veerwati, prosecution witnesses and visited the place of occurrence at village Vahornagala, Police Station Nawabganj, District Bareilly. 7. Besides, Ram Prakash Singh Rathore PW-9 recorded statement of various other persons and prepared site plan Ext. Ka-8 at the pointing out of the victim. He perused and noted contents of the medical examination report pertaining to the victim. After completing the investigation, he filed charge sheet Ext. Ka-9 against the accused-appellant under Section 376 I.P.C. 8. Thereafter, the case of the accused-appellant was committed to the court of Sessions from where it was madeover for trial and disposal to the court of the aforesaid Additional Sessions Judge, who after hearing the prosecution and accused-appellant on the point of charge, was prima facie satisfied with the case and framed charge under Section 376 I.P.C. Charge was readover and explained to the accused-appellant who abjured charge and claimed to be tried. 9. 9. The prosecution was asked to adduce its testimony whereupon the prosecution produced in all ten witnesses. A brief sketch of the same requires mention at this stage asut infra:- 10. PW-1 is Harish Kumar, scribe of the written report. PW-2 is Dr. P.L. Sharma who has medically examined the victim on 15.09.2007 and also proved the medical examination report as well as supplementary medical examination report. PW-3 is Veerwati, informant (mother of the victim and wife of the accused-appellant). PW-4 is the victim. PW-5 is Durga Devi, grand-mother of the victim who is witness of fact. PW-6 is Constable Vijay Pal Singh who prepared check F.I.R. and noted contents thereof in the concerned general diary of date 14.09.2007. PW-7 is Dr. Virendra Kumar, Pathologist who examined vaginal slide pertaining to this offence and proved the pathological report as Ext. Ka-6. PW-8 is Dr. Ram Manohar, Radiologist who conducted radiological test on the person of the victim and has proved the radiological report as Ext. Ka-7 and x-ray plate as material Exts. 1 and 2. PW-9 is Ram Prakash Singh Rathore, Investigating Officer. He investigated the case and filed charge sheet Ext. Ka-9 against the accused-appellant. PW-10 is M.M. Khan, S.H.O. who, in fact, arrested the accused-appellant on 15.09.2007 at 8:30 p.m. and prepared arrest memo Ext. Ka-11 and has proved the general diary entry Ext. Ka-12 numbered as 55 at 21:15 hours of the aforesaid date at Police Station Nawabgaj, District Bareilly. 11. Thereafter, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he denied his implication in this incident and claimed to have been falsely implicated in this case on account of jealously and enmity nurtured by the informant and also questioned the investigation of this case. In reply, he has submitted in writing that his wife and his mother on the basis of false case were trying to grab his property. In fact, Durga Devi PW-5 is his mother and has associated herself with his father-in-law Lala Ram and is residing with him and at the instance of Lala Ram, she has sold 11 bighas' land to his wife Veerwati (informant). The mutation proceedings mooted at the instance of Veerwati were subsequently rejected after it was objected by other family members. 12. The mutation proceedings mooted at the instance of Veerwati were subsequently rejected after it was objected by other family members. 12. An application regarding the present incident was moved before the Senior Superintendent of Police, Bareilly, dated 08.08.2007 wherein the fact of the informant being ousted from his house on 03.08.2007 was alleged, whereas, the application does not point out about commission of the rape by the accused-appellant upon the victim. In fact, the entire exercise has been done to grab the property of the appellant and false case of rape has been set up against him. He is innocent and cannot think of committing rape upon his daughter and the victim was cleverly cajoled and influenced by the informant (wife of the accused-appellant) and Durga Devi (mother of the accused-appellant), due to which she is not telling the truth before the trial court. 13. Noticeable that during course of the cross-examination, typed application addressed to the Senior Superintendent of Police, Bareilly, dated 08.08.2007 containing description of the incident on 03.08.2007 is available on record and is marked as Ext. Kha-1. 14. As a sequel to it, the case was posted for extending arguments pros and cons by the parties and after vetting the case on merits, the learned trial court returned finding of conviction against the accused-appellant under Section 376 I.P.C. and sentenced him with imprisonment for life coupled with fine Rs.1,00,000/-with default stipulation, ut supra. 15. Consequently, this appeal. 16. Learned counsel for the accused-appellant has contended that it is a false case. The first information report is highly belated and manipulated and is outcome of deliberation and consultation. There is no explanation as to how and why the first information report was lodged by the informant on 14.09.2007, whereas, the fact is that some altercation hassling between both the sides took place and the accused-appellant being on the one side and the informant, his daughter and his mother being on the other side conspired with Lala Ram, father-in-law of the accused-appellant for grabbing the land of the accused-appellant and sending him behind the bars by levelling false allegation of commission of rape being committed upon his own daughter by the accused-appellant. 17. 17. Further contended that in case any offence of rape was committed by the accused-appellant then the informant should have communicated the same fact to the Senior Superintendent of Police, Bareilly, while she moved an application dated 08.08.2007 before the Senior Superintendent of Police, Bareilly but this application which is Ext. Kha-1 reflects that not a single word has been spelt about commission of offence being committed by the accused-appellant upon his own daughter. 18. Next contended that the first information report is highly motivated and the victim was under influence of her grand-mother and mother due to which she has not been telling truth and the trial court has not taken serious view of the matter and has ignored the application of the informant addressed to the Senior Superintendent of Police, Bareilly and has wrongly recorded the finding of conviction and thus passed the sentence, which is not justified. 19. While retorting to the aforesaid facts, learned A.G.A. has submitted that there is no point in claiming false accusation, for the reason that the victim in all genuineness has come with a case of rape being committed upon her by her father. It is the case of the prosecution that out of public disrepute, the matter was tried to be suppressed by the informant herself. It so happened that the informant being ousted from the house by the accused-appellant was pressurized to disclose real cause that she had to come with actual incident which in fact occurred on 03.08.2007 and offence was committed by the accused-appellant. 20. The statement of the victim on the point of commission of rape is conspicuous, clinching, consistent and the same inspires confidence. Moreso, on point of rape being committed upon the victim by the accused-appellant, two witnesses namely wife and mother of the accused-appellant have also corroborated testimony of the victim and have narrated the very beginning of the incident and behaviour of the accused-appellant during course of the occurrence. Learned trial Judge after considering the entire gamut of testimony on record vis-a-vis facts has justifiably returned the finding of conviction and has passed appropriate sentence against the accused-appellant. 21. We have also considered rival submissions – utsupra -of the parties. 22. Learned trial Judge after considering the entire gamut of testimony on record vis-a-vis facts has justifiably returned the finding of conviction and has passed appropriate sentence against the accused-appellant. 21. We have also considered rival submissions – utsupra -of the parties. 22. After considering the rival submissions and perusing record of this case, the moot point that arises for adjudication of this appeal relates to the fact whether the prosecution has been able to prove the charge under Section 376 I.P.C. against the accused appellant beyond reasonable doubt and the incident was, in fact, witnessed by Durga Devi PW-5 ? 23. Now insofar as the merit of the case is concerned, we upon careful perusal of the written report Ext. Ka-1 gather that in this case, clear cut allegation regarding rape being committed by the accused-appellant upon her own daughter, aged 13 years has been made in innocuous term and as per description contained in the first information report, it so happened that it was around 11:00 p.m. up to 12:00 in the midnight of 3/4.9.2007, the accused-appellant is stated to have come to his house in drunken condition and took away forcibly the victim (his daughter) to his room who was sleeping with her grand-mother, Durga Devi. 24. Now the argument has been extended by learned counsel for the appellant to the extent that this accusation has been done just to grab the property of the accused-appellant but it is not so, insofar as the property that has been sold out to the informant by the mother of the accused-appellant, is concerned that being subject matter of the dispute on the civil side cannot have any relevance as the motive for false implication in this case, particularly, for the reason that the property belonged to family members itself and Durga Devi has sold out her share of the property to her daughter-in-law (informant Veerwati). To raise claim that mother of the accused was being guided by his father-in-law has been categorically denied both by PW 3 Veerwati and PW-5 Durga Devi. 25. Testimony of the victim PW-4 is innocuous on the point of rape and she is minor and she has given every detail of the occurrence. She has corroborated fact that she sustained some injury although blood did not ooze out. 25. Testimony of the victim PW-4 is innocuous on the point of rape and she is minor and she has given every detail of the occurrence. She has corroborated fact that she sustained some injury although blood did not ooze out. She has testified to the ambit that the accused-appellant is her father and committed rape upon her in the sense that he acted like husband with his wife. She has been parried question as to how she can say so whereupon she explained that after her marriage, she came to know about cohabitation between husband and wife. Noticeable that the victim was examined before the trial court as PW-4 when she had been married with someone after the occurrence. 26. Now the point worth consideration is that not only the wife of the accused-appellant is claimed by the accused to be hostile to him but also the mother and daughter of the accused-appellant have not supported him who stand in closest relationship with him. Each and every aspect of the occurrence has been consistently supported by the prosecution. At some stray point, the victim has deviated and perhaps improved while she testified to the ambit that some firing was also done by the accused-appellant, whereas, that aspect does not find corroboration from testimony of the other two witnesses of fact – say Veerwati PW-3 and Durga Devi PW-5 but that improvement or embellishment appearing in the testimony of the victim would not adversely effect the point of commission of the offence because on the point of commission of rape upon the victim by the accused-appellant who is none other than the father of the victim, is clinching and consistent and version of the victim is fraught with truthfulness. 27. Coming back to the meritorial aspect of this case, as disclosed above we may obverse that in catena of cases, this Court (High Court) as well as Hon'ble Apex Court have elaborately laid down law that in cases involving accusation of rape where testimony of the prosecutrix appears to be clinching, inspiring confidence and consistent with the version of the prosecution case then testimony so forthcoming is to be relied and acted upon by the Courts and finding of guilt based on such testimony can be recorded. 28. 28. So far as the testimony on point of commission of rape is concerned the same has been proved beyond reasonable doubt by testimony of the victim (PW-4), and corroborated by Veerwati PW-3 and Durga Devi PW-5. The defence could not make any dent in it. The testimony of the victim and the two witnesses of fact regarding the occurrence of rape when read as a whole proves beyond shadow of doubt the charge brought against the accused. 29. Contention raised to the extent that prior to the lodging of the report the informant had moved an application before the Senior Superintendent of Police, Bareilly, on 08.08.2007 wherein altercation described was relating to 3rd August, 2007 – the very day on which rape was allegedly committed by the accused, but this application does not whisper about any rape being committed upon victim by the accused-appellant. The contention sounds well to reason but falls short of, to invoking our favourable response for the reason that the informant Veerwati PW-3 has stated in categorical terms that she tried to hide this occurrence being made public but compelling circumstances forced her to lodge the report. This testimony of Veerwati (PW-3) has withstood wrath of strenuous cross examination by the defence but held its foot firmly to the ground. Therefore, non-description of commission of rape in the application dated 08.08.2007 by the informant would not cause any adverse impact to the case of the prosecution. 30. Moreso, there is no plausible reason or circumstance either apparent or implicit which may give credence to any theory of false implication with ulterior motive. In this way, we also notice that learned trial Judge has taken just and consistent view of testimony on record and has justifiably recorded finding of conviction and awarded appropriate sentence against the accused-appellant which judgment of conviction and imposition of sentence need not be interfered with by us in this appeal. 31. Accordingly, we uphold the judgment and order of conviction dated 05.08.2010 passed by Additional Sessions Judge, Court No.5, Bareilly, in Session Trial No.174 of 2008, State Vs. Bhao Prakash, arising out of Case Crime No.964 of 2007, under Section 376 I.P.C., Police Station Nawabganj, District Bareilly. 32. In the result, the instant appeal being devoid of merit is dismissed. 33. In this case, appellant Bhao Prakash is in jail. Bhao Prakash, arising out of Case Crime No.964 of 2007, under Section 376 I.P.C., Police Station Nawabganj, District Bareilly. 32. In the result, the instant appeal being devoid of merit is dismissed. 33. In this case, appellant Bhao Prakash is in jail. He shall serve out the remaining sentence imposed upon him by the trial court. 34. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.