Heard Sri Rehan Ahmad Siddiqui, learned counsel and amicus curiae for the appellant and Sri Balkeshwar Srivastava, learned AGA for the State and perused the record.
The instant criminal appeal has been preferred against judgment and order of conviction dated 24.7.2013 passed by Additional Sessions Judge, court no.9, Hardoi in S.T. No.708 of 2011, State of U.P. Versus Vs. Guddu Raidas under Sections 376, 504 IPC arising out of Case Crime No.706 of 2011, P.S. Beniganj, District Hardoi, whereby the appellant has been sentenced to rigorous imprisonment for ten years with a fine of Rs.10,000/-, in case of default the appellant will have to suffer six months' additional rigorous imprisonment under Section 376 IPC and one year imprisonment with a fine of Rs.1000/-, in case of default, he will have to suffer one month's additional imprisonment under Section 504 IPC. Both the above sentences shall run concurrently.
Factual matrix of the case, as discernible from the record appears to be that first informant Pappu son of Nanhkey Raidas, resident of village-Jaraua, P.S-Beniganj, District Hardoi lodged the written report at P.S. Beniganj, District Hardoi to the effect that accused Guddu Raidas son of Sitaram Raidas enticed away his daughter aged about five years and took her to maize field where he sexually assaulted her. Her daughter came back home weepingly and told her mother that Guddu Raidas has teased her. First informant and his wife Pootana Devi inquired about the matter with accused Guddu Raidas, whereupon he abused them and began to run away from the place when he was caught with the help of co-villagers Ram Prasad son of Ram Swaroop, Jai Karan son of Chowdhary, Nahnkey son of Tarra, Lalta son of Nanhoo. The first informant came to the police station along with the victim, his wife and the accused (Guddu Raidas). Report be lodged and action be taken. This written report is Exhibit Ka-1. Relevant entries were made in the Check FIR at Crime No.706 of 2011, under Sections 376, 504 IPC at P.S. Beniganj on 9.8.2011 at 5.05 P.M. The check FIR is Exhibit Ka-2. On the basis of entries made in the Check FIR, case was registered against the appellant at P.S. Beniganj at aforesaid crime number vide entry made in Report No.26 at 5.05 P.M. under Sections 376, 504 IPC. Copy of the concerned GD is Exhibit Ka-3 on record.
The victim was medically examined by Dr. Nasreen Rasool, at Women Hospital, Hardoi on 9.8.2011 at 8 P.M. who found following injury on the person of the victim.
On external examination, no mark of injury was found. Secondary sex character not developed.
On internal examination, lacerated wound present on vagina size 1 cm x 0.5 cm x .25 cm at 6 O'clock position reaching to forchete. Hymen freshly torn bleeding/oozing present from edges. Vaginal smear taken by swab stick, which was painful. Vaginal smear taken and sent to pathology, district hospital, Hardoi for presence of spermatozoa and gonorrhoea. She was also referred for x-ray examination for determination of her age. This medical examination report is dated 9.8.2011 which is Exhibit Ka-4 on record. Consequently, supplementary medical report was prepared and x-ray was done. X-ray plate was brought on record as material Exhibit-1. On x-ray of right wrist, two carpel bones were seen. Cuneiform starts appearing. This x-ray report is Exhibit Ka-6.
In the supplementary report, no spermatozoa was seen. Only RHC and polymorph in plenty were seen. On the basis of x-ray examination report and supplementary report, age of the victim was assessed to be about 3-4 years and her injury on vagina was stated to be caused as a result of commission of rape. This supplementary report is Exhibit Ka-5.
The Investigating Officer also recorded statements of prosecution witnesses and also prepared memo of blood stained saree and vest on 11.8.2011. This memo is Exhibit Ka-8. The Investigating Officer also prepared memo of arrest of Guddu Raidas on 9.8.2011 and he proved the same as Exhibit Ka-10. The Investigating Officer also prepared the site plan of the occurrence, which is Exhibit Ka-7. After completing investigation, the Investigating Officer submitted the charge-sheet in aforesaid case crime number under aforesaid sections of IPC against the appellant Guddu Raidas, which charge sheet is Exhibit Ka-9 on record.
Thereafter, the case was committed to the court of Sessions from where it was made over for trial court for disposal. The appellant was heard on the point of charge and prima facie ground was found existing for framing charge under Sections 376 and 504 IPC. Charge was accordingly framed and read over to the accused, who abjured charge and opted for trial.
In order to prove its case, the prosecution produced as many as seven witnesses. Pappu PW-1 is the complainant. He has proved the written report, Exhibit Ka-1. Smt. Putana Devi wife of first informant is P.W.2. She has stated description of incident, as narrated to her by the victim. The trial court also tested competency of victim but after initial inquiry, the trial court observed that the victim is not competent to be a witness because of her tender age. Constable Mewa Lal is P.W.4. He has proved Check FIR, Exhibit Ka-2 and the relevant General Diary entry concerning Check FIR as Exhibit Ka-3. Dr. Nasreen Rasool P.W.5 is the Medical Officer, who medically examined the victim and also prepared the supplementary report and has proved the same as Exhibit Ka-4 and 5, respectively. Dr. R.C. Gupta PW-6 is Radiologist. He has prepared x-ray report on the basis of x-ray plate and proved as material Exhibit -1 and x-ray report as Exhibit Ka-6. Javed Ikbal S.S.I. is P.W.7. He is Investigating Officer who has described his investigation and filing of charge-sheet in the case and has proved Exhibit 7, 8, 9 and 10.
Thereafter evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein accused termed his implication false due to enmity. In reply to question no.8, he has stated that at the relevant point of time, he was on the maize field. Defence has led ocular testimony of one Babloo son of Girish D.W.1 regarding the fact that first informant's wife Putana Devi was plucking cucumber from accused's field, therefore, he informed the accused about her act and then accused reached to the spot where some altercation took place and in the scuffle, daughter of the first informant fell down on the stump of maize from lap of her mother, due to which, she sustained injuries. After evidence of D.W.1, no further evidence was given, therefore, evidence for the parties was closed.
The trial court after hearing the parties, appraising the evidence on record and considering the facts and circumstances of the case, has passed the impugned judgment of conviction and imposed the aforesaid sentences upon the appellant.
Consequently this appeal.
It has been vociferously submitted on behalf of the appellant that as per information of the victim herself, she has nowhere stated that she was raped by the appellant. She has used word 'MURAHI' meaning thereby; that some teasing was done, therefore, fact of teasing will not tantamount to commission of rape and the case will not go beyond the purview of Section 354 IPC. Injury report has not been duly proved and it does not corroborate fact of bleeding on private part as has been explained by DW-1 that it has been caused by fall of victim on stump in maize field. Therefore, it cannot be said that the appellant ever committed sexual assault on the victim. There is no direct testimony of the offence of rape.
Sri Balkeshwar Srivastava, learned AGA refuted aforesaid arguments and submitted that story of rape has been consistently proved. The victim was of tender age of 3-4 years and it was not expected that she would ever spell words like "rape" or "sexual assault" being committed on her. She has used vernacular local language, particularly word 'MURAHI'.
Here the injury caused on the private part of the victim is self speaking and hymen was found torn freshly. The appellant on being inquired about the incident tried to escape from the place, however, he was overpowered and caught with the help of villagers. He has admitted his presence in the maize field at the relevant point of time when the incident took place as is evident from testimony of DW-1. The learned trial court has scrutinized facts and evidence in right perspective, therefore, the conviction and sentence passed by the trial court is justified and needs no interference by this Court. Appellant deserves even more severe punishment than the present one.
Considered the rival submissions also.
After considering the allegations made in the FIR, the various prosecution papers and the evidence tendered on behalf of both the sides, the moot point arises worth consideration in this appeal relates to the fact whether the appellant committed the offence under Sections 376 and 504 IPC, and the prosecution has been able to prove the charge beyond reasonable doubt or the version of the defence that the injuries were caused to the victim by falling on the stump in the maize field under circumstances are established?
At the very outset, the very perusal of the written report, Exhibit Ka-1, reveals that allegations have been made regarding commission of rape upon the daughter of first informant, who was stated to be aged about 5 years. Here I come across testimony of the radiological examination of the victim based on material Exhibit-1 (X-ray plate). The doctor has opined the age of the victim around 3-4 years, as per supplementary medical examination report Exhibit Ka-5. It is obvious that the victim being child of tender years cannot be expected to come out with such detailed version as may be given by an adult woman/ lady. It is obvious that the learned trial court also tested competency of the victim as to whether she can be treated to be a competent witness or not. After initial examination and inquiry, the learned trial court recorded finding that the witness/victim being of tender age is not competent witness, therefore, her testimony was not recorded in this case and the same was dispensed with.
As per the statement of the accused recorded under Section 313 Cr.P.C. and the testimony of DW-1 Babloo, it is admitted position that the appellant was present at the relevant point of time of occurrence in his maize field where the incident took place. Site plan, Exhibit Ka-7 shows the damaged maize crop and place 'X' has been marked as the place where the incident allegedly took place. The prosecution witnesses of fact Pappu and Putana Devi have been examined as PW-1 and PW-2, respectively. PW-1 is the first informant and he did come in direct contact with the victim after the occurrence when the victim came back home with tears in her eyes. He was only informed about the incident by her wife about the incident. Pappu PW-1 has stated in his examination-in-chief that Guddu Raidas was seen enticing away his minor daughter by his younger brother and his wife, thereafter her daughter came back home weepingly. Blood was oozing out from her private part. The victim told her mother that 'Guddu Raidas nay mere saath murahi ki hai". At this, informant's wife enquired from Guddu Raidas about the matter, whereupon Guddu Raidas abused her. An alarm was raised by his wife whereupon the appellant was caught with the help of other co-villagers and he was taken to the police station where the informant dictated the report to one person and after the contents were read over to him, he marked his thumb impression on it. He has proved the written report as Exhibit Ka-1. He has been cross-examined, wherein testimony has come forth that the first information report was dictated by Daroga Ji and was taken down by another person. However, he has stated in his cross-examination that he was narrated about the incident by his wife and younger brother's wife Rinki and then only facts were dictated by him to a man, who wrote the FIR.
From the testimony of PW-1, it emerges out that Daroga Ji initially inquired from the wife of the first informant and then the matter was dictated to one person. Further, that the report was dictated as soon as he reached at the police station. He admitted that at the time of incident, he was at village Bhayangaon. He was told about the incident around 2 p.m. by his younger brother's wife Rinki at Bhayangaon. He has admitted that Rinki and Guddu Raidas are not on speaking terms. He has also stated that he is deposing in court only at the instance of his wife and his younger brother's wife Rinki.
It is obvious that P.W.1 at the most is the first informant and he only lodged report after he was informed about the incident by his wife and his younger brother's wife Rinki. Impact of such first information report shall be discussed only after appraisal of testimony of another prosecution witness of fact Smt. Pootana P.W.2 the wife of first informant. As per her deposition, she has stated that her daughter was aged about 5 years, at that point of time near about 2 p.m. her daughter was playing outside the house when appellant enticed her away and took her to his maize field on the pretext of giving her cucumber. When her daughter came back home, she was weeping and blood was oozing out from her private part and blood stains were also seen on her vests and underwear, which she wore at that time.
On inquiry being made as to how blood is oozing out, she informed that 'Guddu Raidas nay mera saath murai ki thi'. When she inquired about the matter from Guddu then he abused her and started running away when he was caught with the help of villagers. Thereafter she informed about the incident to her husband and went to the police station where her husband lodged the report. Thereafter, medical examination of her daughter took place at the district hospital Hordoi. She has been cross-examined, wherein she has stated that she is an illiterate woman, she cannot recall the date on which the incident took place. She has stated on page-3 of her cross-examination that no dispute ever took place between her husband and the appellant. The dispute took place between the appellant and her 'devrani' Rinki. Rinki and Guddu Raidas are not on speaking terms. She has also stated that she was also not on speaking terms with Guddu Raidas. Guddu Raidas resided behind her house. She has stated that at that point of time when Guddu Raidas enticed away her daughter, she was preparing food. She used to prepare food around 10-11 a.m. Her daughter went out of house around 2 P.M. and she was playing there for about an hour. After an hour or so her daughter came back home weeping and blood was oozing out from her private part and blood stains were also seen on her vests and underwear, which she wore at that time. At that point of time, her husband was at village Bhayangaon. She along with Rinki went to Bhayngaon and her brother-in-law (Dewar) also accompanied her. They arrived Bhayangaon in the afternoon. It has been stated that the distance between Bhayangaon and her village is about three kilometers (one kose). She and Rinki narrated the incident to her husband from where they went to the police station. They reached police station in the evening. She has also stated on page-7 that Daroga Ji dictated FIR to some person. She does not know his name. At the same place, she has stated that the contents were dictated by her husband and herself which only was written in the first information report. Pinki did not ask to write name of Guddu Raidas in the FIR. She has denied the suggestion that the FIR was dictated by Pinki. She has also stated that Daroga Ji took into possession blood stained clothes of the victim. It has also been suggested by the appellant that victim fell down on the stumps of maize field when she sustained injuries on her private part which caused bleeding. She has also denied suggestion that she has lodged report against Guddu Raidas at the instance of villagers. She has also stated that her daughter remained under treatment for three days in the hospital. She has also stated that Pinki and Rinki is the same person/woman.
In the wake of above testimony, it has been contended by the appellant that the FIR was dictated by Daroga Ji and PW-2 was tutored to give specific testimony against the appellant because PW-2 and her sister-in-law Rinki were not on speaking terms with the appellant. Here entirety of the evidence of PW-1 and PW-2 when taken as a whole reflects that the first information report was no doubt dictated inside the police station where the appellant was also present as he was taken to the police station by the first informant and his wife; but it is obvious that it was dictated by none other than the first informant and his wife and it was that narration, which was taken down by the person who wrote the report. Had it not been so how can defence suggest that the FIR was in fact dictated by Rinki or was lodged at the instance of Rinki. It is due to above specific suggestion by the appellant that this Court sees no reason to act on the contention so raised. No doubt, it is a case where there is no direct testimony of rape but for the offence of rape as to whether it was in fact committed by the appellant or not, appraisal of testimony of formal prosecution witness, particularly that of doctor assumes enormous importance. Thus, scrutiny of contents of medical examination vis-a-vis circumstances of the case and the testimony of Babloo DW-1, who has also narrated about some another incident in the maize field of appellant on the very same day has to be cautiously made in order to draw just conclusion on point of commission of offence of rape.
The medical examination report of the victim is Exhibit Ka-4. This medical examination report is dated 9.8.2011, the following internal injuries were detected by the doctor - P.W.5. A lacerated wound was present on vagina size 1 cm x .5 cm x .25 cm at 6 O'clock position reaching forchetea, hymen freshly torn and bleeding and oozing present from edges. Supplementary report Exhibit Ka-5 reflects that injury may be caused due to commission of rape. In the supplementary report, age of the victim is assessed to be 3-4 years. Dr. Nasreen Rasool, P.W.5 has also proved the above injuries and she has stated that after getting general anesthesia, two stiches were applied on the wound and dressing was done. In her examination-in-chief, this witness has specifically stated that this wound on the vagina is possible due to commission of rape. In her cross-examination, she has been specifically asked question whether such injury can be caused by falling of victim on a stump in maize field, whereupon, this witness has replied that after such fall, the wound will be severe and deep. But this wound cannot be caused by falling on the stump in the maize field. She has also stated that she found hymen freshly torn. No further suggestion has been given that this wound cannot be caused by rape.
At this juncture, it would be relevant to enter into appraisal of testimony of Babloo DW-1 who has stated in his examination-in-chief that it was around 1/1.30 p.m. he was returning home for taking lunch then he went for taking bath; at that point of time, appellant Guddu Raidas also came home and began to take his food. The wife of first informant had gone to the maize field of Guddu Raidas for plucking cucumber. He informed about the same to Guddu Raidas that wife of Pappu is plucking cucumber from his field. Guddu Raidas immediately went to his field where some altercation took place with Pappu's wife. Guddu Raidas pushed Pappu's wife due to which her daughter, who was in her lap was thrown away and she fell on the stump in maize field and blood oozed out, then Pappu's wife began to weep, whereupon Ram Prasad son of Ram Swaroop, Jai Karan son of Chowdahary, Nanhakkey son of Tarra, Lalta son of Nanhoo of the same village beat up Guddu Raidas with kicks and fists and danda which caused injury to Guddu Raidas. In his cross-examination, he has admitted that he informed the appellant about plucking of cucumber. He has been suggested that he being nephew of appellant is deposing falsely in court. He has stated in his cross-examination on page-2 that he told about plucking of cucumber by Pappu's wife to the appellant and went for bathing. He stated that as soon as he told Guddu Raidas about this fact Guddu Raidas went to his field and he (DW-1) started bathing. If it is so, then it is obvious that the very location of maize field of Guddu Raidas is situated at a short distance from his house. When this witness was in process of bathing then Guddu Raidas might have reached his field. This obviously shows that this witness was not present on the spot when Guddu Raidas reached to his maize field, therefore, his testimony about scuffle and altercation between Guddu Raidas and the wife of first informant before him stands falsified. On the contrary, this testimony is fair enough to indicate that the appellant was beaten up by several villagers and was caught by them. Even in reply to question no.8 under Section 313 Cr.P.C. the appellant has admitted his presence on his maize field at the time of the occurrence. Therefore, testimony of DW-1 is wholly unreliable on the point of scuffle and altercation, because as per his testimony, he told about plucking of cucumber by first informant's wife to the appellant and appellant immediately rushed to his field and this witness started bathing. Then this witness must have taken at least 5 to 10 minutes for bathing and during this period the appellant must have reached his maize field. What transpired there cannot obviously be seen by this witness. Further, there is no any such circumstance or any whisper about such altercation or scuffle on the maize field, as described by DW-1. No such fact regarding altercation came in the knowledge of the Investigating Officer. Obviously, the concerned Investigating Officer had no motive to falsely implicate the appellant that he was interested in dictating the FIR. More so the injury on the vagina cannot be explained to have been caused otherwise; but fact of hymen freshly torn virtually establishes sexual assault on the private part of the victim. Thus, theory of rape, under circumstances, stands proved to the hilt which aspect need no further corroboration. It can be conveniently observed that the position of hymen is interior to the vagina. Its location is inside the vagina and blood was oozing out from the private part of the victim when she came back home weeping and she has told name of the appellant to her mother and the innocent child is 3-4 years old. How innocuous is her testimony when she named appellant in her vernacular expression, 'MURAHI' and this word should not be confused and confined to teasing only but this teasing has its implication well founded on commission of rape. Obviously, it was the appellant and the appellant alone who committed the rape.
Claim of enmity between wife of first informant and her sister-in-law Rinki and the appellant has been suggested to be the motivating factor for false implication. The claim so raised is neither proved nor inferable from circumstances. It can be observed that the first informant could have levelled serious allegations against the appellant by involving his wife either as victim or as an eye witness of the incident but that is not the fact. Here very narration of fact in vernacular language to the first informant's wife by the victim coupled with injury on her private part is in itself exclusively independent circumstance pointing to the nature of offence perpetrated and the perpetrator-who is none else than the appellant.
Here in the present scenario, the prosecutrix is a child who on account of her tender age cannot be expected to come out with minute details of the incident but only this much was fair enough that she attributed act of causing injury to the appellant. The factum of rape being committed as suggested by the doctor witness P.W.5 has not been specifically challenged. Testimony of DW-1 is on the face improved and arranged one and the same is not supported from the facts and circumstances of the case. Therefore, the trial court has drawn just conclusion based on evidence, facts and circumstances on record and the same need no interference by this Court.
The judgment and order of conviction dated 24.7.2013 passed by Additional Sessions Judge, court no.9, Hardoi in S.T. No.708 of 2011, State of U.P. Versus Vs. Guddu Raidas under Sections 376, 504 IPC arising out of Case Crime No.706 of 2011, P.S. Beniganj, District Hardoi, is hereby confirmed. Consequently, this appeal being devoid of merit is hereby dismissed.
Appellant is in jail. He will serve out remaining part of the sentence imposed on him by the learned trial court.
Let a copy of this order be certified to the learned trial court for its intimation and necessary follow-up action.
Dt: 10.05.2016 Rk