This criminal appeal has been filed against the judgment and order dated 27.08.2010, passed by the learned Additional Sessions Judge, Court No.4, Faizabad, by which the appellant has been convicted for the offence punishable under Sections 366 and 376 I.P.C. and has been sentenced to undergo rigorous imprisonment of seven years and a fine of Rs.5000/- for the offence punishable under Section 366 I.P.C. and sentenced to undergo rigorous imprisonment of ten years and a fine of Rs.10,000/- for the offence punishable under Section 376 I.P.C.
The prosecution case in brief is that complainant Lal Bahadur son of Jag Narayan Tewari, village-Bhawapur, Newada, Police Station-Bikapur, Faizabad lodged a written report at Police Station-Pura Kalandar on 22.10.2008, at 14.15 hours with the allegations that his daughter K.A. (Changed name) had gone with her Mausa Brijesh Pandey to his house on the occasion of "Akhand Ramayan" on 07.10.2008. On 17.10.2008, Brijesh Pandey managed to leave girl Arti Tewari to complainant's house with his younger brother Hari Shyam Pandey, but Hari Shyam Pandey in spite of bringing minor girl to the house of the complainant, made her to run away somewhere with him by inducing and seducing her on the way itself. The complainant made a hectic search for the girl but she could not be traced out. He mentioned the identity of the girl as K.A. fair colour, slim body, length five feets three inches, aged about seventeen years, passed Intermediate in education and prayed for taking action after lodging the report.
On the basis of the written report, Chik FIR No.216/2008 was prepared and a case under Sections 363 and 366 I.P.C. was registered at Crime No.965 of 2008 and entries were made in G.D. at Rapat No.28 on the same date.
The case was entrusted to Sub-Inspector, Ram Vir Singh for investigation. He recorded the statement of complainant Lal Bahadur at the Police Station on 22.10.2008 and arrested accused Hari Shyam and abducted K.A. from the platform Near G.R.P at 17.45 hrs. on the identification of said Lal Bahadur, recorded the statements of accused Hari Shyam and abducted girl, added Section 376 I.P.C. in the case on the basis of the abducted girl K.A. and enquiries made from the accused, got the prosecutrix medically examined, after coming to light the age of the prosecutrix as 19 years Section 363 I.P.C. was deleted, got the statement of the prosecutrix recorded before the Magistrate under Section 164 Cr.P.C., and as per wishes of the victim by Court's order she was handed over in the Supurtagi of her parents. Investigating Officer inspected the place of occurrence on the pointing of the complaint and prepared its site plan and having completed all the formalities relating to the offences submitted charge-sheet against the accused Hari Shyam Pandey under Sections 366 and 376 I.P.C.
Charges under Sections 366 and 376 I.P.C. were framed against the accused Hari Shyam Pandey, who denied the charges and claimed to be tried.
Prosecution in proof of its case has examined complainant Lal Bahadur Tewari as PW-1, victim K.A. as PW-2, Investigating Officer Ram Vir Singh as PW-3, Constable Anjani Kumar Singh scriber of Chik FIR, etc. as PW-4, Dr. Smt. Vinita Rai, the then Medical Officer, Female Hospital, Faizabad, who had medically examined the victim, Arti, as PW-5, Sanjeev Kumar Dubey, Clerk in the office of CMO, Faizabad who proved age certificate of the victim given by the CMO, Faizabad, as PW-6.
Statement of the accused, Hari Shyam Pandey was recorded under Section 313 Cr.P.C. He denied the prosecution story and stated that he has falsely roped in the case on account of enmity with PWs-1 and 2 and other witnesses in collusion with the complaint. He further stated that complaint is Sarhoo of his elder brother. Rs.25,000/- are due on the complainant as arrears of him. His relations with his real brother became sour on the point of recovery of that arrears. Uniting his real brother with him Sarhoo falsely implicated him in the case. K.A. has said through a letter that she blamed him on the pressure of her father.
DW-1 Durgesh Kumar Pandey and DW-2 Victim K.A. have been examined by the accused in his defence.
Heard learned counsel for the appellant, learned Additional Government Advocate and perused the record.
Learned counsel for the appellant has submitted that the prosecutrix was major on the date of accident and she was a consenting party. It has also been submitted that in the medical examination, no external or internal injuries have been found on the body of victim. It has also been submitted that the Investigating Officer has not visited the place of occurrence at Faizabad and has also not recovered the alleged Scooter. The prosecutrix was intimate with the appellant and her conduct shows that she was a consenting party. It has also been submitted that no entry has been made in the G.D. at G.R.P. where the girl was recovered.
Learned Additional Government Advocate has defended the impugned judgment.
PW-1 Lal Bahadur Tewari, the father of the victim K.A. has stated on oath that his daughter Arti had gone with his Sarhoo Brijesh Pandey to his house on 07.08.2008 on the occasion of "Akhand Ramayan" which started on 10.10.2008 and ended on 11.10.2008. He went to participate in the Ramayan and bring her daughter, but Brijesh Pandey requested to send her on 17.10.2008. When his daughter did not reach his house upto the evening of 17.10.2008, this witness inquired about his daughter to Brijesh Pandey on phone. Brijesh Pandey replied on phone to send his daughter with his brother Hari Shyam Pandey some time ago. The witness waited for the girl till late night. On the next day, the witness reached the house of his Sarhoo Brijesh Pandey, who made search of the girl for two days here and there in relations and continued to refrain from lodging the FIR. Compelling with the circumstances, the witness got written report scribed by his brother Sheo Bahadur and going with him and wife Gayatri Devi submitted the written report at Police Station Pura Kalandar. The witness proved the written report as Ext. Ka-1. He further stated that the girl was recovered with accused Hari Shyam Pandey from Railway Station, Faizabad on 22.10.2008.
PW-2 K.A., victim has stated on oath that on 31.10.2008 her statement was recorded before the Magistrate. Paper No.12-A filed on record was read over to this witness who replied that this is the statement which was given before the Magistrate concerned who got her signature made on the statement. The witness verified her signature made on Paper No.12-A, the statement recorded under Section 164 Cr.P.C., which has been marked as Ext. Ka-5.
PW-3 Investigating Officer, Ram Vir Singh has stated on oath that on 22.10.2008 he was handed over the investigation of Case Crime No.965 of 2008 registered under Sections 363 and 366 I.P.C. at the Police Station. Copying the Chik FIR in the case diary the recorded the statement of Lal Bahadur and set out with Lal Bahadur to inspect the place of occurrence. In the meanwhile, the informer informed him about the presence of accused Hari Shyam Pandey and abducted girl K.A. at the Railway Station, Faizabad. The witness along with accompanying police personnel, the complainant and the mother of the abducted girl reached the Railway Station informing lady homeguard Munni Sahu of Mahila Thana for reaching the Railway Station G.R.P. As K.A. and accused Hari Shyam the witness apprehended them at 17.45 hrs. confirming their names and introducing their crime. The victim was given in the Suprutagi lady homeguard and accompanying parents and her statement was recorded and before it he made entries of their return in G.D. At Rapat No.37 of the same date at 18.40 hrs. The copy of G.D. Has been proved by this witness at Ext. Ka-2. He added Section 376 I.P.C. in the case on the basis of the inquiries made from the abducted girl who was sent with lady homeguard Munni Sahu for medical examination. On 31.10.2008 the medical examination report of the victim was received. It was mentioned in the case diary. On the basis of her X-Ray report her age was ascertained as 19 years. Consequently, Section 363 I.P.C. was struck down from the record of the case. She got her statement under Section 164 Cr.P.C. Recorded and on the basis of this statement offence under Sections 366 and 376 I.P.C. were registered. He inspected the place of occurrence on the pointing of the complainant and prepared its site plan Ext.Ka-3. Having established the offences under Sections 366 and 376 I.P.C. against accused Hari Shyam Pandey thoroughly and after completion of investigation, this witness submitted charge-sheet against the accused Hari Shyam Pandey under Sections 366 and 376 I.P.C., which he proved as Ext. Ka-4.
PW-4 Constable Anjani Kumar Singh, the then Constable Moharrir of P.S. Pura Kalandar, Faizabad has stated on oath that on 22.20.2008 on the basis of the written statement of complainant Lal Bahadur Ext. Ka-1 he prepared Chik on 216 of 2008 at Crime No.965 of 2008 under Sections 363 and 366 I.P.C. which, this witness proved as Ext. Ka-6 and its entries in G.D. was made by Head Moharrir Mahendra Bahadur.
PW-5 Dr. Smt. Vinita Rai, the then Medical Officer, Dufferin Hospital, Faizabad has stated on oath that on 24.02.2008 K.A. was brought to the hospital by Homeguard Saroj Devi 2576 at 3,20 p.m. for medical examination and her accompanying brother permitted to get her sister medically examined. The lower court and upper teeth of K.A. were 14 by 14. There were hairs in the armpit and hairs have grown up on the vagina. Breasts were developed. She is 1.55 cms. In height. She had attended her menses on 6th October, 2007 as per her disclosure. Her general condition was good.
External Examination.
No mark of injury was detected on the body of K.A.
Internal Examination.
Hymen of K.A. was found torn with healed edges. No mark of injury was found on her vagina and no blood was oozing from it. Her vagina was admitting two fingers easily. Two slides of her vaginal smear were prepared and sent for pathological test of spermatozoa and gonococcai. Her uterus was normal and no pain was reported in it.
Victim K.A. was referred to the CMO, Faizabad for ascertaining her age. The witness had prepared her medical examination report on which her marks of identification are noted and her thumb-impression was obtained, which, the doctor proved as Ext.Ka-7.
PW-6, Sanjeev Kumar Dubey, lower divisional clerk of the Office of the CMO, Faizabad has stated on oath that he has been working in the office of the CMO for about 10 years. Dr. M.K. Singh was posted as CMO during his tenure. He is well conversant with his handwriting and signatures and had seen him writing and reading. On the basis of the examination, conducting X-Ray, etc. Paper No.6A/2 filed on record the age of K.A. Victim, was detected as 19 years. The witness has proved the age certificate of victim given by CMO M.K. Singh as Ext. Ka-8. CMO M.K. Singh has made his initial at serial No.101 of a Age Certificate Register brought in Court, at which the age of K.A. victim was noted.
D.W.1 Durgesh Pandey has stated on oath that he knows accused Hari Shyam of his village as K.A. daughter of Lal Bahadur. K.A. is the daughter of Sarhoo of Brijesh, brother of accused Hari Shyam. K.A. has been married in Pathak-Ka-Purwa situate near Gangauli. As K.A. was on visiting terms to his village, he recognizes her. Rahul, the son of maternal uncle of K.A. and a resident of village Tooti-Ka-Purwa, had come to the village of this witness two months ago, who were already known to him. Rahul proposed to visit sister K.A.. Both reached her house. After reception K.A. took pen from Rahul as she was sitting before this witness. K.A. wrote on reliance cooker printed paper and handed it over to both saying to give it to Hari Shyam to file it in court. Both gave that paper to Hari Shyam. Seeing paper No.22-A/2 filed on record the witness said this is the paper, which was written by K.A. taking the pen of Rahul and it was said to be given to Hari Shyam. The witness further stated that Lal Bahadur, the father of K.A. present in court and the Pairokar of the Police Station extend threats if he will depose before the court, he would be lodged in jail. On complaint to DIG the witness was got sent to his house with the police.
DW-2 K.A. has stated on oath that she has two brother and four sisters including herself. Her Nanihal situate in Tootey-Ka-Purwa and Ram Kumar Mishra is her maternal uncle and Rahul is his son. Rahul is her maternal brother too. She does not know Krishna Kumar Pandey of village Bhitaura, but known Durgesh Kumar Pandey when she read with him in Class-VII. She does not know that the sone of her maternal uncle and Durgesh are on visiting terms. She is married to Rakesh Pathak of Pathak-Ka-Purwa, Ganguli. She is educated upto Intermediate and can recognize seeing her writing. Seeing paper No.22-A/2 filed on record the witness stated that it is not in her handwriting. She was suggested to write seeing paper No.22-A/2. She agreed for it.
Learned counsel for the appellant has given much emphasis on the point that the victim was a consenting party, therefore, she had not raised any alarm. Admittedly, the appellant was married person at the time of incident and he was a younger brother of real Mausa of the victim. Therefore, the victim was like a daughter of him. Admittedly, the victim accompanied the appellant with the sole purpose that she shall be left to her father's home and not otherwise. This do not constitute consent for abduction or rape. The alleged consent can not be made a tool to commit moral and illegal act in the life. During the course of trial, the appellant had also tried to prove a letter allegedly written by the victim and the victim was also examined as PW-2. The victim, who has also been examined as DW-2 has specifically stated that she had not written any such letter to him. Learned trial court also asked the victim to copy the said letter in her handwriting. The said letter was copied by the victim in the presence of the court and learned court below has found that handwriting of disputed letter and copy made in the presence of the court are entirely different.
I have also perused the said disputed letter and the copy done by the victim in the presence of the trial court. I also found that handwriting of both the letters is different. There is neither similarity in the speed of writing, formation of letters, peculiar characteristics of the writer and the speed of pen. Therefore, learned trial court has reached on correct conclusion that the said letter was not written by the victim.
An inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 I.P.C. refers to the expression "Consent" and describes what is not consent.
For the purpose of Section 375, voluntarily participation is required after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.
In the case of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113 Hon'ble the Apex Court has interpreted the word "consent" as under:-
"'Consent' is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn if only based on evidence or probabilities of the case."
It has been further held that the consent is intended by Sections 375 and 376 IPC should not be under a misconception of fact.
In the case of Deelip Singh alias Dilip Kumar vs. State of Bihar reported in (2005) 1 SCC 88, Hon'ble the Apex Court has held that:-
"In the matter of consent, the court has to see whether the person giving the consent had gone it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. alleged offender is concious of the fact or should have reason but think that but for the fear or misconception, the consent would not have been given."
In the present case, from the perusal of evidence on record, I do not find that the victim consented for intercourse.
From the judicial decisions rendered by the Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus:-
"(i) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge.
(ii) There may be circumstances in a given case which might make it safe to dispense with such a corroboration.
(iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated that:
(a) circumstances showing on the part of prosecutrix an animus against the accused;
(b) where the question of want of consent is material, circumstances tending to show consent e.g. absence of material showing an attempt at resistance, absence of any marks of struggle;
(c) attempt at improvement or exaggeration in the version as attempted by the prosecutrix;
(d) conduct on the part of the prosecutrix inconsistency with the credibility of the version e.g. omission to make a disclosure at the earliest opportunity;
(e) element of artificiality or unnatural-ness in the story as attempted by the prosecutrix, and
(f) absence of signs of rape in the findings of the medical examination or on chemical analysis".
In the present case, the victim who has been examined as DW-1, has specifically stated that on 17.10.2008, when she was going to her father's home after attending the "Ramayana" then the appellant had offered her tea, due to which she became unconscious then she was taken to Faizabad and where the appellant had committed rape with her against her wishes. She has further stated that whenever the appellant used to go outside the room, he used to lock the door of the room. She has further stated that with a planned way to go somewhere else she was brought to the Railway Station where her brother and other family members were there and she started weeping then there was some dispute between the appellant and her brother upon which the G.R.P. Police took cognizance and she was sent to Mahila Thana. The victim was also examined under Section 164 Cr.P.C. and in the statement recorded under Section 164 Cr.P.C. she has specifically stated in her statement that appellant had enticed her away and had committed rape with her forcefully. During trial, this witness has reiterated the said statement and has fully supported the prosecution story. This witness has been cross-examined at length, but nothing adverse has come in her statement so as to disbelieve the theory of kidnapping and the rape with her.
The submission of learned counsel for the appellant is that police of G.R.P. has not made any entry in the Case Diary, therefore, the said recovery from the Railway Station is doubtful. The victim and other witnesses have specifically stated that appellant and the victim were found at the Railway Station where the brother of the victim was also present. It has also been come in the evidence that there was some dispute between them and then she was sent to Mahila Thana.
In my opinion, if G.R.P. has not recorded the said incident, then it does not give birth to any reasonable doubt.
Learned counsel for the appellant has also submitted that in the medical examination report, no injuries were found on the body of the victim. Therefore, the said story of forceful rape cannot be believed.
In the case of Santosh Kumar vs. State of M.P. reported in (2006) 10 SCC 595, the Hon'ble Apex Court has held that mere fact that no injuries were found on her private parts, cannot be a ground to hold that no rape was committed upon her. Again in the case of State of Rajasthan vs. N.K. (accused) decided on 30.03.2000, the Hon'ble Apex Court has held that the absence of injuries and delay in the First Information Report cannot be a ground to disbelieve the prosecution story, if otherwise found reliable.
In view of the aforesaid law laid down by the Hon'ble Apex Court, I do not find any substance in the submission of learned counsel for the appellant regarding the absence of injuries.
Lal Bahadur Tewari PW-1, who is father of the victim, has specifically stated in his statement that his daughter has gone to the house of Brijesh Pandey, who is the co-brother (Sarhoo) to attend the "Akhand Ramayana" and on the request of Brijesh Pandey she stayed there upto 17.10.2008. But when his daughter had not come back, then he inquired from his co-brother Brijesh Pandey, who replied on phone that he has sent his daughter with his brother Hari Shyam Pandey. The complainant and the witnesses searched the girl for two days and due to relationship he refrained from lodging the First Information Report, but when his daughter was not received, then he had lodged the report. This witness has also been cross-examined at length, but nothing adverse has come in his statement. The victim, who has been examined as PW-2 as well as DW-2 has supported the prosecution version and has specifically stated that she was enticed away by the appellant, who had committed rape with her.
Ram Vir Singh PW-3 is the Investigating Officer of this case and has also recovered the victim, who has proved the recovery of the victim along with appellant and has stated that after the recovery, she was sent for medical examination and in the medical examination, her age was ascertained as 19 years. Therefore, her statement was recorded under Section 164 Cr.P.C. and on the basis of her statement the offence under Section 363 I.P.C. was struck off and Sections 366 and 376 I.P.C. were added. He has also proved the site plan as Ext. Ka-3 and the charge-sheet as Ext. Ka-4.
Chik First Information Report and the copy of G.D. have been proved by Anjani Kumar Singh PW-4. Dr. Smt. Vinita Rai has proved the medical examination of the victim. Sanjeev Kumar Dubey PW-6 is the formal witness, who has proved the signature of CMO Dr. M.K. Singh.
From perusal of the statement of the victim, who has been examined as PW-2 and DW-2, it does not transpire that she was a consenting party. No doubt, the victim was related with the appellant because the appellant was the younger brother of co-brother of his father. The co-brother of the complainant had sent the victim along with the appellant with the purpose of sending her to her father's home. But the appellant instead of sending her to father of the victim, had offered tea, which was intoxicated, as per the statement of the victim, and then she was brought to Faizabad where she was got in the room and she was raped by the appellant. The victim was like a daughter of the appellant and the appellant was a married person at the time of incident. Therefore, he was in the knowledge of the consequences of abduction as well as rape. No doubt that the victim had accompanied the appellant with the purpose that she shall be carried out to the place of her father, but this does not mean that she has consented for going to Faizabad and to commit rape. Even if it is presumed, though not proved that there was a consent, even then the appellant was a married person and I fail to understand that why he had shut out his eyes while committing such heinous crime with the girl, who was in relation like a daughter. From the evidence of the prosecutrix as well as from her statement recorded under Section 164 Cr.P.C., nowhere it transpires that the victim was a consenting party for the alleged rape. The statement of the victim is very natural and the defence of the appellant that because there was some dispute with his own brother, therefore, in connivance with the father of the victim, a false report has been lodged. Had it been the position, Brijesh Pandey might not have sent the victim with him and the appellant should also not have done so. The said defence is not proved and there is no evidence in defence that there was any enmity between the parties. DW-1 Durgesh Pandey appears to be a totally tutored witness who has also admitted in his cross-examination that he is giving evidence to save the appellant. Therefore, his statement is also not reliable in view of specific denial by victim about said letter.
Despite of his best efforts, learned counsel for the appellant could not show any material irregularity in the statement of the witnesses.
Learned court below has considered all aspects of the matter in detail and has appreciated the evidence on record very categorically. The statement of the prosecutrix is fully reliable and there is no room to create any reasonable doubt about the fact that she was abducted by the appellant and the appellant had also committed rape with her. The prosecution has fully succeeded in proving the guilt of the appellant beyond reasonable doubt.
In the result, I do not find any substance in this appeal and the appeal deserves to be dismissed. As far as the quantum of punishment is concerned, I do not find any reason to interfere therewith.
The appeal is dismissed. The conviction and the sentence as awarded by the trial court is upheld and the bail granted to the appellant by the order dated 13.05.2011 stands cancelled.
The appellant is directed to surrender before the Chief Judicial Magistrate, Faizabad within two weeks from today to serve out the sentence. In case the appellant does not surrender before the court concerned, the court below shall be at liberty to take coercive steps against the appellant.
The office is directed to send the certified copy of this judgment and order along with lower court record to the court concerned, at an early date.
Order Date :- 22.7.2014 Suresh/