Hon'ble Gautam Chowdhary,J.
(Per - Justice Gautam Chowdhary)
1. Heard Sri Ambrish Kumar Kashyap, learned counsel for the appellant and Sri Roopak Chaubey, learned A.G.A. for the State.
2. This criminal appeal has been filed against the order and judgement dated 6.12.2004 passed by (Additional Sessions Judge, Special Court) (S.C./S.T. Act), Farrukhabad in S.C./S.T. No. 30 of 2003 (State of U.P. Vs. Bali Mohammad) convicting and sentencing the appellant to undergo under section 376 Indian Penal Code (hereinafter referred as (IPC) life imprisonment and Rs. 10,000/- fine, in default of payment of fine he shall further incarcerations for six month rigorous imprisonment. Appellant was punished and sentenced undergo under section 3(1)(XII) Scheduled caste and Scheduled Tribes Act, 1989 (hereinafter referred as SC/ST Act) for the five years R.I. and Rs. 1,000/- fine in default of payment of fine he shall further undergo for six month extra R.I. All the sentences will run concurrently.
3. The brief facts of this case are that F.I.R. has been lodged on 29.08.2020 at 18.45 by Dashrath Lal, resident of Shekhpur Rustampur, police station Kamalganj, District Farrukhabad stating therein that he is Jatav belonging to scheduled caste community. One resident of same village namely Munna son of Lal Mohammad of muslim and not of scheduled caste community has sent the prosecutrix aged about 11 years to carry out his bag from the school. On denial she was threatened by Munna. Under the fear and pressure when she went to the school, Munna came from behind and raped her. The F.I.R. culminated into recordings of statements by police and medical examination of prosecutrix.
4. The trial was to be conducted by the court of Sessions as it was Sessions triable case, hence the case was committed to the court of sessions.
5. The court of sessions framed charges against the sole appellant/ accused who pleaded not guilty. The prosecution examined the following witnesses :-
1. Prosecutrix P.W.1
2. Dasrath Lal (Father) P.W.2
3. Dr. Neelam Rani (Dr.) P.W.3
4. Dr. Satendra Kumar (Dr.) P.W.4
5. Dr. U.C. Sachan (Dr.) P.W.5
6. Krishna Kumar Singh P.W.6
7. R.B. Suman P.W.7
6. In order to substantiate the oral testimony of the witnesses and their medical evidence, documentary evidence were also produced which are as follows :-
1. Written report Ext. Ka-1
2. Recovery of cloth Ext. Ka-2
3. Injury report Ext. Ka-3
4. Supplementary report Ext. Ka-4
5. X-ray report of prosecutrix Ext. Ka-5
6. Injury report of prosecutrix Ext. Ka-6
7. F.I.R.
Ext. Ka-9
7. The accused was examined under section 313 Cr.P.C. also for evidences against him led over.
8. The submissions of the counsels were heard.
9. The arguments advanced by learned counsel for the appellant before us in nut shell are as follows:
(I) That the F.I.R. is delayed and anti timed.
(II) That the accused has been falsely implicated. The reason being father of the prosecutrix is an advocate and due to non payment of fees and other issues, he falsely implicated the accused.
(III) That the peon of the school where incident is said to have occurred has not been examined as and when the incident occurred in the school.
(IV) That the injuries of the prosecutrix occurred on account of her falling on the cut plants of maize field and not because of any overt act on part of occurrance.
(V) That the story narrated by the prosecutrix does not corroborate with the medical evidence.
(VI) No case under SC/ST act is made out.
10. The counsel for the appellant relied on the judgements of in (A) Arvind Kumar Vs. State of U.P. in Criminal Appeal No. 1880 of 2013; (B) Ram Naresh @ Bhondu Vs. State of U.P. in Criminal Appeal No. 2599 of 2007 ; (C) Criminal Appeal No. 582 of 2002 Jai Prakash @ Guddue Vs. State of U.P. (d) in Criminal Appeal No. 1213 of 2002 Bhagelu Harijan Vs. State of U.P. In the case of Arvind Kumar (Supra) , there was no external injury at all whereas in the present case external injuries are found and the opinion of Dr. U.C. Sachan is also corroborating this fact.
11. Learned A.G.A. for the State Sri Roopak Chaubey has submitted that the life punishment awarded to accused under the facts and circumstances of the case was the only punishment which can be awarded to accused as it is very heinous crime against the society. He was well aware that the girl is of 12 years age has been raped by the accused and has also drawn our attention upon the testimony of doctors and he argued that the testimony of two doctors is highly reliable and there is no inconformity the trial court's judgement. The decision of the cases which are heavenly relied by learned counsel for the appellant in the case of Mataruwa @ Amar Vs. State of U.P. decided on 15.12.2015 in Criminal Appeal No. 4909 of 2009 will not add him as in the same matter the evidence was shaken. The matter was proceeded on the basis that the prosecutrix was a consenting party, after her mother saw the incident and she never said that he not the accused. In the case of Arvind Kumar (Supra) , there was no external injury at all whereas in the present case external injuries are found and the opinion of Dr. U.C. Sachan is also corroborating this fact. In that view of the said decision I cannot apply here. The decision relied by learned counsel for the appellant titled Arvind Kumar Vs. State of U.P. decided on 26.7.2019 passed in Criminal Appeal No. 1880 of 2013 and Ram Naresh @ Bhondu Vs. State of U.P. decided on 20.07.2015 passed in Criminal Appeal No. 2599 of 2007 cannot aid the accused as facts are quite different.
12. We would discuss the argument advanced by learned counsel for the appellant but before that we would like to discuss the evidence both ocular as well as medical and the trial courts decision.
13. (I)That while considering the first point, it is relevant to mention here that the FIR was lodged on 29.08.2002 at 18.45. The incident took place on the same day i.e. 29.08.2002 approximately at about 4 P.M. There is only a gap of two hours and forty five minutes, hence, it can not be said that there was any delay of lodging the F.I.R. rather it was well within the time and prompt F.I.R. was lodged by father of the prosecutrix, so the argument advanced by learned counsel for the appellant is not sustainable. Hence, the answer is in negative.
14. (II)With regard to second point is concerned, it is well established in the evidence that the father of the prosecutrix was not the counsel of the accused at all, the father of the prosecutrix was junior to the counsel of accused. Moreover, the argument advanced by counsel of the accused that he has been falsely implicated with the malafide intention with regard to non payment of fee, this argument is not acceptable at all and it has been well considered by the trial court and in the circumstance, if argument is accepted why a father of a minor girl will implicate the accused on account of such a heinous matter of his young daughter. The findings given by the trial court in this regard is affirmed as the story of accused has not been supported by any evidence.
15. (III)So far as the third argument advanced by learned counsel for the appellant is concerned, has been well considered by the trial court and from a perusal of the trial court's judgment it comes out that in the said school the peon was not residing at the school. Therefore, In the case of Arvind Kumar (Supra) , there was no external injury at all whereas in the present case external injuries are found and the opinion of Dr. U.C. Sachan is also corroborating this fact.the argument advanced by the counsel for the appellant is not sustainable.
16. (IV)The argument advanced by learned counsel for the appellant in respect of point no. 4 is concerned, is also not sustainable and it has been well discussed by the court below that when the evidence took place the crop of the maize was standing, hence there is no reason at all to believe this argument.
17. (V)Now the last and most important argument advanced by learned counsel for the appellant that the statement of the girl/ prosecutrix is not corroborated while considering this point, the lower court highly relied upon the testimony of P.W. 3 Dr. Neelam Rani who clearly stated that while examining the internal injuries she found that hymen was recently badly raptured and on touching bleeding was there while a single finger was entering as the prosecutrix was medically examined by the doctor on the very same day. Further, she was of the opinion and has clearly stated that the prosecutrix is aged about 12 years and she also specifically stated that on 29.08.2002 at about 4.00 P.M. the rape is possible. The testimony given by the Dr. Neelam Rani is well proved and there is no reason to dis-believe the testimony of P.W. 3, she clearly corroborates with the statement of the girl.
18. Dr. Neelam Rani, P.W. 3 has very vehemently stated that the age of the prosecutrix is 12 years and in her statement Doctor has clearly narrated that the rape was committed with prosecutrix at about 4 P.M. In her testimony Dr. Neelam Rani has well proved, she had opined that there is clear cut possibility of rape. After discussing and perusing the evidence on record given by the Doctor it can not be dis-believed rather there is no reason to dis-believe the testimony of Dr. Neelam Rani which is also supported by the Dr. U.C. Sachan who also supported the version of Dr. Neelam Rani. Dr. Sachan has very confidently stated that the injuries of the prosecutrix shows that she was assaulted before rape and also she was dragged on the ground.
19. Further more, the P.W. 5 Dr. U.C. Sachan who was then the Medical Officer at Dr. Ram Manohar Lohiya Hospital, Farrukhabad clearly stated that there were six injuries on the body of prosecutrix and these were only two days back injuries. He further stated that injuries No. 3 and 4 can be there in case of dragging on floor and in testimony Dr. U.C. Sachan has totally given the opinion that the injuries can be occurred in maize field, whereas he has specifically stated that it can be caused by danda and fists. So after considering the testimony of Dr. Sachan it is clear that before rape she was assaulted and pressure was applied on her. There is no reason to dis-believe the testimony of P.W. 3 and 5 respectively who are Dr. Neelam Rani and Dr. U.C. Sachan. Whereas testimony given by both the doctors has supported the version of the prosecutrix and there is no reason to dis-believe the testimony of the said two doctors. From the ocular evidence it can be said that the minor daughter of the complainant was ravished. The prosecutrix narrated the entire incident without any blemish which is corroborated by the medical evidence. The learned Judge has satisfied himself that the deponent namely P.W. 1 was a minor and understood what she was deposing and where she was deposing. He has categorically mentioned that after the incident she became unconscious and she has shouted. She was ravished in the school after the school time when nobody was present. The school is about 50-60 feet from her home. There are people staying near the school is not in dispute. She was returning back from school and she was playing near her door of the home. He has categorically denied that the accused stayed at Aliganj. She has stated that the accused belongs to her own village. She has been shaken in her testimony only regarding the accused given her Rs. 500/-. Accused having dispute regarding fees with her father. P.W. 2 also took his daughter to the hospital for medical check up. He is an advocate by profession and on 29.08.2020 at about 4.00 P.M. incident had occurred, he has narrated the antecedents of the accused and he was senior of the advocate who was the advocate for the accused. We thereafter turn to the evidence of Dr. Neelam Rani which is very important for our purpose, who has categorically mentioned that there was hymen was raped which started bleeding on touching. On seeing the documentary evidence she had opinion on oath that at about 4.00 P.M. in the evening there was all chances that the prosecutrix could have been ravished. Dr. Satyendra Kumar has done the ossification test which shows that the girl was a minor. P.W. 5 has found all kind of injuries on the body of the prosecutrix.
20. All these will not permit us to upturn the judgment of the trial court as far as the offence under section 376 Indian Penal Code is concerned.
21. As far as (point no. VI), the offence under section 3(i) (Xii) of Scheduled Caste/Scheduled Tribes is concerned the same cannot be sustained for the following reasons, as recently decided in Criminal Appeal No. 240 of 2011 we have held that unless the prosecution proves that the incident of a person belonging to the scheduled caste/ scheduled tribes was perpetuated with an intention to insult, then the conviction would not sustainable. In our case there is no such allegation in the F.I.R. nor on the version of P.W. 1 and 2, hence conviction under section 3(1)(XII) of Scheduled Caste/ Scheduled Tribes Act, 1989 hereinafter referred as SC/ST Act is not sustainable and is quashed.
Quantum of Punishment
22. The learned counsel for the appellant contends that the punishment of life till the last breath in the factual date is too harsh punishment and the same may be re-considered. We are convinced that the accused is a sole author and offence is not so gruesome that life till the last breath would be the only punishment which can be accorded and after considering the argument and perusing the record, it is very clear that there is no infirmity in the order passed by the trial court and the act of appellant is confirmed as of rape. Further the counsel for the appellant argued that appellant is in jail for the last 17 years and prayed for quantum of punishment may be reduced and he relied upon the judgement of G.V. Siddharamesh Vs. State of Karnataka (2020)3 SCC 152 and Maaru Ram Vs. Union of India AIR 1980 SC (14) and Vikash Yadav Vs. State of U.P. 2016 (9) 541.
23. The impugned judgement and order dated 6.12.2004 passed by Additional Sessions Judge, (Special Court), (SC/ST Act), Farrukhabad in Session Trial No. 30 of 2003 State of U.P. Vs. Bali Mohammad is affirmed. As far as quantum of punishment is concerned, we are of the view that the present case is not a case where the maximum punishment of life imprisonment ought to have been awarded to the accused i.e. 16 years of R.I. as the appellant is already in jail for the last 17 years, further the appellant shall deposit the fine of Rs. 15,000/ under section 376 IPC as per decision of trial court.
24. Let a copy of this judgment along with the trial court record be sent to the Court concerned and Jail Authorities concerned and District Magistrate for compliance.
25. We are thankful to the Advocates of both the sides namely Ambrish Kumar Kashyap, learned counsel for the appellant and Sri Roopak Choubey for the State for assisting the Court.
26. Accordingly, the appeal is partly allowed.
27. Record and proceeding be sent back to trial court.
Dt: 10.02.2021 RPD/