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2024 DIGILAW 1857 (ALL)

Babu Ram v. State of Uttar Pradesh

2024-08-08

ASHWANI KUMAR MISHRA, GAUTAM CHOWDHARY

body2024
JUDGMENT : (Ashwani Kumar Mishra, J.) 1. This criminal appeal is directed against the judgment and order dated 24.2.2018, passed by the learned Additional Sessions Judge/Court No.1, Pilibhit in Sessions Trial No.8 of 2015, arising out of Case Crime No.622 of 2015, under Sections 376(2)(f), 376(2)(n) IPC and 5/6 POCSO Act, Police Station Newriya, District Pilibhit; whereby the appellant Babu Ram has been convicted and sentenced to life imprisonment under Section 5/6 POCSO Act alongwith fine of Rs.10,000/-; sentenced to ten years rigorous imprisonment under Section 376(2)(f) IPC alongwith fine of Rs.10,000/-; sentenced to ten years rigorous imprisonment under Section 376(2)(n) IPC alongwith fine of Rs.10,000/-. In default of payment of fine to undergo one year additional imprisonment in all above sections. All the sentences are directed to run concurrently. 2. In the present case the first informant is the step-brother of victim, namely Sandeep (PW-2). He intimated the Incharge of Police Station Neoria, District Pilibhit that his father died several years ago. After death of his father his mother Smt. Somwati started living with the accused appellant Babu Ram and out of their union a daughter was born who is around 18 years of age (the victim). Smt. Somwati, biological mother of informant and victim died when the victim was only about a year and a half old. The victim is residing with her father Babu Ram (the accused). About five years back accused Babu Ram remarried a Bengali lady. Informant alleged in his written report (Ex.Ka.3) that for the last about one year the accused appellant Babu Ram has been sexually exploiting the victim and after she got fed up, the victim informed of it to him and also to his cousin Jagdish (s/o Ram Awtar). The victim also informed them that about ten days ago the accused appellant also committed rape on her sister. The contents of the information were incorporated in the general diary and the First Information Report came to be registered in the matter on 2.6.2015, being Case Crime No. 622 of 2015. Victim was medically examined and her statement under Section 161 and 164 Cr.P.C. was recorded on 3.6.2015. The victim stated before the Magistrate that her father Babu Ram has been establishing physical relations with her for the last one year and on her refusal she was threatened. This has continued for a year. Victim was medically examined and her statement under Section 161 and 164 Cr.P.C. was recorded on 3.6.2015. The victim stated before the Magistrate that her father Babu Ram has been establishing physical relations with her for the last one year and on her refusal she was threatened. This has continued for a year. Victim further asserted that she informed her travails to her brother (PW-2) since her mother had already died. In her statement to the Investigating Officer the victim informed that she got the report filed through her step-brother Sandeep (PW-2) and cousin Jagdish (not produced). 3. Victim was medically examined on 3.6.2015. The doctor opined that the victim was 14-15 years of age and thus a minor. No external or internal injuries were found on the victim. Victim’s hymen was found old torn. Vaginal slides were prepared but in the pathological report no live or dead spermatozoa was found. After conclusion of investigation the charge-sheet was submitted by the police in the matter on 11.7.2015. The Magistrate took cognizance of the charge-sheet and referred the matter to the Court of Sessions where it got registered as Sessions Trial No. 8 of 2015. The concerned court has charged the accused appellant of offence under Section 376(2)(f), 376(2)(n) IPC and 5/6 POCSO Act. The charges were read out to the accused on 14.9.2015, who denied the accusations and demanded trial. 4. Before we proceed further with the facts of the case we may place on record that on the previous occasion a direction was issued by us to inquire about the status and well-being of the victim. Learned AGA has produced a report from the concerned police station stating that the victim is already married with three children and is happily settled. Further details of the victim and her family or its composition is withheld to protect the identity and privacy of the victim. 5. At the stage of trial the prosecution has produced following documentary evidence:- “1. FIR dt. 2.6.2015 as Ex.Ka.6 2. Written Report dt. 2.6.2015 as Ex.Ka.3 3. Statement u/s 164 Cr.P.C. dt. 3.6.2015 as Ex.Ka.2 4. Statement of victim Km. Kranti as Ex.Ka.1 5. Medical report dt.3.6.2015 as Ex.Ka.5 6. Medical report dt. 3.6.2015 as Ex.Ka.12 7. X-ray Report dt. 3.6.2015 as Ex.Ka.4 8. Medical examination report dt. 3.6.2015 as Ex.Ka.13 9. Supplementary Report dt. 25.6.2015 as Ex.Ka.14” 6. Written Report dt. 2.6.2015 as Ex.Ka.3 3. Statement u/s 164 Cr.P.C. dt. 3.6.2015 as Ex.Ka.2 4. Statement of victim Km. Kranti as Ex.Ka.1 5. Medical report dt.3.6.2015 as Ex.Ka.5 6. Medical report dt. 3.6.2015 as Ex.Ka.12 7. X-ray Report dt. 3.6.2015 as Ex.Ka.4 8. Medical examination report dt. 3.6.2015 as Ex.Ka.13 9. Supplementary Report dt. 25.6.2015 as Ex.Ka.14” 6. The victim has been produced as PW-1 at the trial. She has supported the prosecution case with regard to sexual assault on her by the accused appellant for nearly thirteen months. She has also proved her statement under Section 164 Cr.P.C. Victim further stated that on her refusal to submit to sexual advances of accused she was threatened with dire consequences. 7. In the cross-examination the victim has informed that she had come to the Court with her brother (PW-2). The victim further stated that her mother was murdered by the accused appellant. She got this information from her step-brother Sandeep and her sister. She treats informant as her brother since their mother is common i.e. Smt. Somwati. The victim has denied the suggestion that she has falsely deposed against her father on the persuasion of the informant. She has further alleged that when her mother died the victim was one to one and a half years of age and she has been brought up by the accused appellant and his family members. 8. In her further cross-examination the victim stated that the act of sexual assault upon her was performed for the first time about ten months back but she does not remember the date, time or place when/where the offence was first committed on her. According to the victim she lived with her grandparents in a house with thatched roof while her father lived in a different house with his family. PW-2 Sandeep lived close to the house of her grandparents. Her grandfather is very weak and could hardly move. Her grandparents and father dissuaded her from interacting or speaking to the informant. She had come to depose in the Court with the informant (PW-2). 9. Victim in her deposition has explained the incident of 2.6.2015. On that date the accused had come to the grandparents house while returning from work and asked for a glass of water from the victim. The victim although said that she is getting water but did not give water to the accused. 9. Victim in her deposition has explained the incident of 2.6.2015. On that date the accused had come to the grandparents house while returning from work and asked for a glass of water from the victim. The victim although said that she is getting water but did not give water to the accused. It is thereafter that she was punched on her back by the accused appellant. It is then that the informant and his cousin Jagdish intervened; saved the victim; assaulted the accused and handed him over to police after tying his hand and feet. She indicated her wish to be with her brother and not to stay with her father. Victim has stated that she understands the meaning of rape. She has denied the suggestion that accused appellant did not commit any rape upon her or that she had framed him to take revenge from the accused appellant for murdering her mother. 10. Informant Sandeep has been produced as PW-2. He has fully supported the prosecution case and has also proved the written report which was exhibited as Ka-3. In the cross-examination also PW-2 supported the prosecution case. He has alleged that accused Babu Ram is his stepfather and at the time of his marriage with her mother he was about 8-10 years old. His mother died when victim was about a year old. PW-2 in the cross-examination has alleged that after death of his mother he stayed for sometime at his nansar (maternal grandfather’s house). He has no enmity with the accused Babu Ram nor did he suspect the accused appellant of murdering his mother. He was not aware that accused Babu Ram was got jailed by his maternal uncle. He came to the house 4-5 years after the death of his mother. He rarely got a chance to talk to the victim as the accused Babu Ram and his parents discouraged her to do so. The house of victim’s grandfather has a thatched roof with no boundary. It is for the first time on the date of making written report to the police that the victim informed him about rape upon her by the accused. On the date of incident the victim came to his house in the afternoon and informed his cousin Jagdish about her rape by the accused. It is for the first time on the date of making written report to the police that the victim informed him about rape upon her by the accused. On the date of incident the victim came to his house in the afternoon and informed his cousin Jagdish about her rape by the accused. He came to know about it for the first time at about 5.00 PM when he returned from his in-laws house at Shivpuria. Victim returned to her home thereafter. The act of victim’s refusal to give water and her beating was seen by him from beneath the tree infront of the house. Victim rushed to Sandeep whereafter he only apprehended the accused for giving him to the police after he confessed. The report was lodged by the informant alongwith Jagdish and the victim. PW-2 has clearly stated that he would keep the victim with him till she is married. PW-2 has denied the suggestion that due to enmity on account of murder of his mother by the accused that he has falsely implicated the accused. 11. PW-3 is Dr. Jagdish Prasad, Radiologist, who conducted x-ray on the victim and has proved the x-ray report. He has also proved the medical report dated 3.6.2015. In his opinion evidence of rape was not ascertainable from the ultrasound report. 12. PW-4 is lady constable Preeti, who has proved the G.D. report. She had taken the victim for her medical examination. 13. PW-5 is the Investigating Officer SI Awadhesh Singh. He has proved the arrest of the accused at 8.20 hours on 3.6.2015. FIR was registered at about quarter to 12.00 in the night on 3.6.2015. This witness has denied the suggestion that he arrested the accused from his residence. Accused did not enjoy any good reputation. He visited the house of the accused and found that he was residing with the second wife of accused. Parents of the accused lived in the village. 14. PW-6 is Dr. Mahavir Singh, Pathologist. He has proved the medical paper Ex.Ka.12 in which no dead or live spermatozoa was found. 15. Dr. Smt. Anjali Singh has been produced as PW-7. He has proved the medical report Ex.Ka.13. She found the victim’s hymen to be old torn. Two vaginal slides were prepared of the victim. In her opinion the age of the victim was 14-15 years. 15. Dr. Smt. Anjali Singh has been produced as PW-7. He has proved the medical report Ex.Ka.13. She found the victim’s hymen to be old torn. Two vaginal slides were prepared of the victim. In her opinion the age of the victim was 14-15 years. Victim came at about 2.00 in the night for medical examination. However, no injuries of any kind were found on the victim and the hymen could be ruptured for any other reasons like cycling, playing or injury. As per the doctor in case of sexual assault some signs ought to have been come on the body of the victim. This was not the case here. She could only comment upon fresh sexual assault and not about sexual assault continued for the last one year. 16. On the basis of above evidence the prosecution got the statement of accused recorded under Section 313 Cr.P.C. On being confronted with the prosecution evidence the accused appellant has stated that false case has been lodged against him and the prosecution evidence is not reliable. 17. Sheel Kunwar (mother of accused appellant) aged about 70 years has been produced as DW-1. She stated that when the accused returned from work he asked for water but when the victim did not offer him water to drink the accused got angry and slapped the victim. It is thereafter that the cousins of victim assaulted the accused Babu Ram and took him to the police station where he was formally arrested. She has stated that despite best effort she could not ascertain the whereabouts of the victim. Even after the death of her grandfather the victim did not visit the family. The second wife of the accused appellant and their child have been chased away from the house by the witnesses. 18. Chameli Devi has been produced as DW-2. She has stated that the victim was living with her grandmother and on account of the incident in which the accused slapped his daughter for not offering him water victim’s cousin assaulted the accused and got him arrested. DW-2 happens to be the sister of the accused appellant. 19. Trial court on the basis of the above evidence has come to the conclusion that prosecution has established its case against the accused appellant and has consequently convicted the accused appellant, as per above and sentenced him to life imprisonment. 20. DW-2 happens to be the sister of the accused appellant. 19. Trial court on the basis of the above evidence has come to the conclusion that prosecution has established its case against the accused appellant and has consequently convicted the accused appellant, as per above and sentenced him to life imprisonment. 20. Learned counsel for the appellant submits that the accused appellant has been falsely implicated at the instance of PW-2 as he bore a grudge against the accused appellant on account of the misplaced belief that his mother was killed by the accused appellant. It is argued that the victim was staying in the house with the grandparents and the allegation that she was raped for a year without anyone coming to know of it or the victim not informing about it to anyone is improbable. The accused appellant was otherwise married and his wife was also living with her child in the house with the thatched roof. Site plan has been relied upon to state that parties lived in hutments close to each other and it appears improbable that a young girl would be raped for so long without anyone coming to know of it or the victim making complaint to anyone. Argument is that the accused appellant has been framed since it is impossible to believe that the victim was continuously raped for almost one year without anybody coming to know of it or anyone seeing the incident. No exact date, time or place of the act of sexual assault has otherwise been specified by the victim. 21. Alternatively, it is submitted that the accused appellant has already undergone incarceration of more than ten years nine months and since he has otherwise no criminal history, the appellant is entitled to be released on the sentence already undergone by him. Learned counsel also argues that no reasons have been assigned by the trial Judge to award maximum sentence, in the facts of the present case. 22. We have heard Sri Jitendra Pal Singh, learned counsel for the accused appellant, Sri J.P. Singh, learned AGA for the State and have perused the records including the trial court records. 23. The evidence on record reveals that the victim is unmarried daughter of the accused appellant. Prosecution case is that she was sexually assaulted by her own father for almost a year. 23. The evidence on record reveals that the victim is unmarried daughter of the accused appellant. Prosecution case is that she was sexually assaulted by her own father for almost a year. The primary evidence of the prosecution is the statement of the victim, who has supported the prosecution case as per which she was sexually assaulted by the accused appellant for almost thirteen months, whereafter complaint was made by the victim to her step-brother Sandeep. The manner in which the incident is alleged to have taken place needs careful analysis in light of the evidence on record. 24. The victim as well as PW-2 both are consistent in saying that on 2.6.2015 accused appellant came to the house of victim’s grandparents while returning from work and demanded a glass of water from the victim. The victim however did not give water to drink to the accused appellant. Accused appellant thereafter punched the victim on her back. It is thereafter that PW-2 alongwith his cousin Jagdish came and physically assaulted the accused appellant whereafter he was taken to the police. The incident of sexual assault has not taken place on 2.6.2015. It was apparently the act of accused appellant slapping his daughter (victim) which was the reason for accused appellant to be physically assaulted and then taken to police or the police arresting him. The immediate cause of raising protest against the accused appellant was, therefore, the act of victim being slapped/punched by the accused appellant. 25. Now coming to the allegation of sexual assault by the accused appellant, on his own daughter, the victim’s consistent version is that she was sexually assaulted for the last about 13 months. The victim on specific inquiry, however, has not specified the date, time or place when she was first subjected to sexual assault. She has also not disclosed as to when and how the accused appellant sexually abused her. There is just a general allegation that for almost 13 months she was sexually assaulted by the accused on the threat that she would be harmed. For this entire 13 months the victim, however, has not made any complaint to anyone. 26. The prosecution witnesses specifically state that the victim was staying with her grandparents. Accused appellant lived in a different house with his wife and child. These houses were in close proximity. For this entire 13 months the victim, however, has not made any complaint to anyone. 26. The prosecution witnesses specifically state that the victim was staying with her grandparents. Accused appellant lived in a different house with his wife and child. These houses were in close proximity. Site plan indicates that family of other brothers of accused also lived close by. Step-brother of the victim, namely Sandeep also lived nearby. Victim therefore had access to the step-brother and other relatives including her grandparents but admittedly none was informed about her rape nor anyone ever saw the incident or came to know of it. The victim has not even alleged that she told anyone about her sexual exploitation. 27. We have also perused site plan which shows that the house of the accused appellant consisted of one thatched roof with a door while another room had no doors. Outside these two rooms is a platform. Adjoining this house there is a little open space belonging to the brother of the accused appellant and, thereafter lies the thatched rooms belonging to other family members. There is absolutely no evidence of any other persons, who may have been informed by the victim during this entire period of 13 months that she was being sexually assaulted by her own father. Wife of accused appellant admittedly lives close by. Accused appellant Babu Ram also has a child with her second wife (victim’s stepmother). It looks rather strange that a young girl was raped for almost 13 months in her own house by her father without anyone coming to know of it or the daughter informing anyone about it. In the entire statement of the victim there is no disclosure that she ever informed anyone of her travails and it was only on the date when she was slapped by her father for not providing him water that she informed about her rape to her stepbrother and his cousin. The victim in her statement has explained the family composition as also the place where she lived in following words:- 28. The above statement shows that apart from accused appellant Babu Ram and his wife and children the other family members of the family including the grandparents and stepbrother Sandeep were living in close vicinity. There is no reason disclosed as to why the victim never informed anyone about the unbecoming acts of the accused appellant. The above statement shows that apart from accused appellant Babu Ram and his wife and children the other family members of the family including the grandparents and stepbrother Sandeep were living in close vicinity. There is no reason disclosed as to why the victim never informed anyone about the unbecoming acts of the accused appellant. The victim has also explained the manner in which the incident actually occurred. 29. Apart from the oral testimony of the victim herself there is no other corroborative piece of evidence to support the allegation of sexual assault upon the victim. None of the family members who were living in the close vicinity has supported the allegation nor is it anyone’s case that any untoward incident was reported by anyone during the last one year. 30. The medical evidence on record has also been examined by us. Three doctors have been examined namely, PW-3, PW-6 and PW-7. In the opinion of the doctors as well as medical examination report no external or internal injuries have been found on the victim. Though the hymen of the victim was found old torn but in the opinion of the doctor there could be various reasons for it. Statement of doctor Smt. Anjali Singh in this regard is relevant and is reproduced hereinafter:- 31. Even in the pathological report no dead or live spermatozoa has been found. In such circumstances, the only testimony which remains on record to support the prosecution case is the version of the victim herself. 32. Moreover, although the victim alleged that her sister was also raped by the accused appellant about ten days back but no evidence in that regard has been produced. 33. Law with regard to evidentiary value of the victim of sexual assault is well settled. The testimony of a victim is equated to that of an injured witness and is entitled to great weight. Ordinarily allegation of sexual assault has to be viewed with concern and the testimony of a victim is entitled to much weight. However, the testimony of the victim of sexual assault has also to be viewed in the surrounding facts and circumstances so as to consider as to whether she could be treated as a sterling witness such that the conviction of accused could be based only on her statement. 34. However, the testimony of the victim of sexual assault has also to be viewed in the surrounding facts and circumstances so as to consider as to whether she could be treated as a sterling witness such that the conviction of accused could be based only on her statement. 34. When the evidence in the present case is carefully noticed we find that there is a strong motive for the victim to falsely implicate her father. Admittedly, the victim was told by her step-brother (informant) that their mother was killed by the accused appellant. The victim has been specific in alleging so in her deposition. The basis of such information is the disclosure made by the informant (PW-2) and her sister who admittedly has not been produced in evidence. 35. Informant Sandeep was born from the union of the mother of victim, namely Smt. Sonwati and one Parmeshwar Dayal. Smt. Sonwati died when the victim was around a year old. PW-2 was living with her mother and accused appellant Babu Ram. There is no evidence on record to indicate as to how the mother of the informant and the victim Smt. Sonwati died. In this regard statement of the victim assumes significance. Victim has clearly stated in her cross-examination that she was told about the murder of her mother by informant Sandeep and her sister. She has also categorically alleged that she came to know from Sandeep and her sister that it was accused appellant Babu Ram, who had murdered her mother. This is clearly reflected from the following statement of the victim:- 36. The above statement of the victim clearly indicates that the victim had a belief that her mother was done to death by the accused appellant. No evidence, however, has been brought on record to even remotely suggest that Smt. Sonwati was killed by accused appellant Babu Ram. 37. On the aspect of alleged murder of victim’s mother by the accused appellant the prosecution evidence is full of contradictions. As against PW-1, PW-2 in his cross-examination has categorically stated that he has no enmity with accused Babu Ram and he does not bear any enmity against him for having killed his mother. Following passages from the statement of PW-2 is relevant and is reproduced:- 38. Statement of PW-2 and PW-1 contradicts each other on the role of accused appellant in murdering their mother Smt. Sonwati. Following passages from the statement of PW-2 is relevant and is reproduced:- 38. Statement of PW-2 and PW-1 contradicts each other on the role of accused appellant in murdering their mother Smt. Sonwati. While the victim says that she was informed by informant (PW-2) and her sister about the accused appellant having murdered her mother, PW-2 (brother of the victim) clearly disowns any such belief of accused appellant having killed his mother. Elder sister of victim has not been produced and it is only PW-2 who has been produced in evidence by the prosecution. Though the question as to who killed Smt. Sonwati may not be directly in question before us, but the accusations in that regard against the accused appellant and its denial by the informant lends credence to the defence version that the victim bore a grudge against the accused appellant. This fact would be relevant as it may constitute the basis for false implication of the accused appellant. 39. In the facts of the case we are inclined to doubt the statement of PW-2 that he did not doubt the accused appellant of having killed his mother. The reason for it is that the victim specifically states that she was informed about the murder of her mother by the accused appellant by PW-2 and there is no reason for the victim to lie on this count. It appears that PW-2 bore a grudge against the accused appellant on account of his belief that the accused appellant had killed his mother and that is why a distance was maintained by the family members from PW-2. Victim and PW-2 both have stated that they were not allowed to interact. It is only on the date of incident i.e. 2.6.2015 that the victim told PW-2 about her rape. It is on this day that accused appellant was assaulted, apprehended and handed over to the police by PW-2. Prior to it no complaint was ever made by the victim about her rape to anyone. 40. It is quite natural for a young girl to carry a grudge against her own father if she harbours a firm belief that her mother was killed by him. This feeling can be strong enough to convince her to justify levelling of false accusation also so that the guilty father be punished for his act. 40. It is quite natural for a young girl to carry a grudge against her own father if she harbours a firm belief that her mother was killed by him. This feeling can be strong enough to convince her to justify levelling of false accusation also so that the guilty father be punished for his act. During the course of trial specific suggestion has been given both to PW-1 and PW-2 by the defence that it was to avenge the enmity with the accused appellant on account of his having murdered their mother that the victim has made false allegation against the accused appellant. 41. Upon careful perusal and analysis of the evidence on record we do find a distinct possibility of the victim having framed her father to avenge the murder of her mother by him, particularly when such facts were told to her by the informant Sandeep. The evidence, further shows that all family members discouraged the victim from interacting with the informant. It appears that the informant did carry this belief that her mother was done to death by the accused appellant and he did told the victim about it. However, at the trial he has completely backtracked on this accusation so as to resist any plea of false implication. Nevertheless, the testimony does show that the victim and PW-2 both harboured a belief that her mother was murdered by the accused appellant. In such circumstances, we are not inclined to place the testimony of the victim in the category of wholly reliable witness such that no corroboration of her testimony would be warranted. 42. Once the testimony of victim is placed in the category of partially reliable and partially unreliable we would be required to look for corroboration of the victim’s accusation in other evidence on record. Upon a careful evaluation of the evidence we find that there is no corroboration of the victim’s accusation except the version of PW-2, who himself is not an eye-witness and his testimony is also based upon the information furnished to him by PW-1. 43. In the facts of the case, it is apparent that accused appellant has already undergone incarceration of more than ten years, nine months with remission. 43. In the facts of the case, it is apparent that accused appellant has already undergone incarceration of more than ten years, nine months with remission. In light of the discussions aforesaid, we are inclined to hold that the defence has succeeded in creating a doubt on the prosecution case of rape for 13 months upon the victim and, therefore, the accused appellant is entitled to benefit of doubt. 44. So far as judgment of conviction and sentence passed by the court of Sessions is concerned, we find that the trial court although has noticed the evidence on record but has completely omitted to consider the import of the victim’s accusation of his father in having murdered her mother. The possibility of false implication of the accused appellant on account of such enmity has been completely overlooked. The fact that the accused appellant otherwise has no criminal history; there is no evidence of his sexual perversion otherwise reported in the past; the accused appellant was already married and it will be difficult to conceive that the act of sexual assault for almost a year may go unnoticed or without a grievance being raised to anyone seems improbable; the immediate provocation was the slapping/punching of the victim by accused appellant for not providing water which enraged the informant who assaulted and apprehended the accused and got him arrested etc. have been overlooked. In that view of the matter, we are not persuaded to accept the reasoning assigned by the court of Sessions in convicting and sentencing the accused appellant, who has already undergone incarceration of more than ten years in jail. 45. Resultantly, this appeal succeeds and is allowed. The judgment and order dated 24.2.2018, passed by the learned Additional Sessions Judge/Court No.1, Pilibhit in Sessions Trial No.8 of 2015, arising out of Case Crime No.622 of 2015, under Sections 376(2)(f), 376(2)(n) IPC and 5/6 POCSO Act, Police Station Newriya, District Pilibhit is set aside. 46. The accused-appellant, who is reported to be in jail, shall be released, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C.