The aforementioned appeals filed on behalf of the accused appellants are directed against judgment and orders dated 27th February, 2013 whereby the appellants have been convicted under sections 363, 366, 376(2)(g) IPC and sentenced to undergo rigorous imprisonment for three years with fine of Rs. 5,000/-, rigorous imprisonment of seven years with fine of Rs. 10,000 and rigorous imprisonment for ten years with fine of Rs. 20,000/-, respectively. In default of payment of fine the appellants have been further directed to undergo rigorous imprisonment for three months, six months on the last two counts, respectively.
Since all the appeals arise out of the same judgment and orders, they have been heard together and are disposed of by a common judgment and order.
Heard Sri Raj Kumar Vaishya, learned counsel for the appellants and Smt. Archana Singh, learned AGA for the State-respondent.
That on 10th April, 2009 at 12.30 P.M. Baldev Prasad gave a written report at P.S. Panwari, District Mahoba stating therein that his daughter aged 16 years had gone to give examination on 25.3.2009. According to him, though she appeared in the examination but did not return home in the evening. He had made search for his daughter. Thereafter on 26th March, 2009 he gave a gumsudgi report at the police station. He had come to know that his daughter was confined by Mansoor and Lalla. Action be taken against the accused persons.
At this check FIR was scribed, case crime no. 452 of 2009 under sections 363 and 366 IPC was registered and investigation was entrusted to SI Manohar Lal who on the same day started the investigation. After completing formalities examined the first informant, further examined eye witnesses Kashi Prasad and Hari Singh, obtained age certificate of the girl, recovered her on 12th June, 2009 near Panwari, got her medically examined. After completing the investigation submitted the charge sheet against the present appellants.
The appellants stood for trial before the Court of Session where they were charged under sections 363, 366, 376(2)(g) IPC. They denied the charges and claimed to be tried. In order to prove the charges on behalf of the prosecution besides documentary evidence in the oral evidence eight witnesses were examined. Thereafter statements of the appellant were recorded under section 313 Cr.P.C. In the defence one witness was examined. After hearing the arguments appellants were convicted and sentenced as above.
On behalf of the appellant it has been submitted that victim was major and the learned trial Judge in violation of provisions contained in Rule 12 of the Juvenile Justice Rules 2007 has appreciated the evidence in reference to age of the girl and recorded erroneous finding of fact.
On behalf of the appellant it has been submitted that from the medical evidence fact of rape is not established and against the present appellants only evidence is the statement of victim P.W.2, whose evidence is not trustworthy and the appellants have been erroneously held guilty of the charges. According to him in the statement of victim P.W.2 there are material contradictions. Her story is unnatural and improbable but the learned trial Judge has not appreciated her statement in legal perspective.
It is further submitted that there is enmity between the two parties. Manshu had love affair with the victim. Plea of enmity of Lalla have not been considered properly. Bheem was not named in the FIR. Therefore, the judgment is full of legal and factual infirmities. It deserves to be set aside.
On behalf of the state-respondent these arguments have been repelled and it has been submitted that statement of victim P.W.2 is fully reliable. It is a matter of gang rape. Age is not material. Victim has given vivid description, how she was subjected to repeated rape. The findings recorded in the impugned judgment are well substantiated from the record. Cogent reasons have been given in support thereof. The appeals are without substance.
In reference to my obligation as an appellate court hearing appeal against conviction, I would like to refresh my mind by recalling the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:
"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."
In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
First it would be appropriate that evidence of the parties be placed on record. Thereafter plea of the defence and their evidence should be taken note of.
Baldev Prasad Kushwaha P.W.1 is the first informant and father of the victim. Besides reiterating facts mentioned in the first information report he has stated that from Kashi Prasad and Hari Singh he came to know that Manshu and Lalla kidnapped his daughter from the school. He has proved written report Ext. Ka-5 and further stated that in his presence girl was recovered.
Victim P.W.2 has stated that she knew all the three appellants. On 25th March, 2009 she had gone school to appear in the examination and at 10 A.M. she came out of her school. Lalla, Manshu and Bheem had two motorcycles, they met her. Lalla threatened her that her family members should be murdered, she had to go with them. They would also disfigure her face. She was made to sit on the motorcycle of Bheem, Lalla and Manshu were on the other motorcycle following Bheem. They took her forcibly to Bilgram and kept her in the house of Bheem. Lalla and Manshu left her there, who had taken her on the following day to his maternal uncle's house and kept her there for one night and there Bheem committed rape on her. On the next day he brought her to Mahoba where Manshu and Lalla met them and then all the three took her to Kanpur by a four-wheeler where she was kept in a room of Bheem's acquaintance with Manshu. Lalla and Bheem had gone back. One day thereafter Bheem came back. 3-4 days after Lalla also came back to Kanpur. All the three at various times committed rape on her against her wishes. After few months they were taking her somewhere while they were crossing by pass near Panwari, she saw police personnel and raised alarm. Police chased them, the appellants tried to throw her out of the car. She had caught Manshu. Both had fallen out from the vehicle and were caught by the police.
Dr. Rashmi Sharma P.W.3 has stated at 12th June, 2009 at 12.30 p.m. she medically examined the victim. Hymen was torn. There was no external mark of injury nor any injury was found on her private parts. Slide of vaginal smear was prepared. She has proved medical examination report Ext. Ka-2, reference slip Ext. Ka-3. According to her on the basis of radiological findings the victim was above the age of 18 years. She has also proved her supplementary report Ext. Ka-4.
Constable Kamal Singh P.W.4 is the scribe of the check FIR. He has proved check FIR Ext. Ka-5, copy of the report of general diary Ext. Ka-6.
S.I. Manohar Lal Chaudhary P.W.5 is the investigating officer. He has given the details of the steps taken during the course of investigation. He has proved site plan Ext. ka-7, charge sheet against Manshu and Lalla Ext. Ka-8, charge sheet submitted against Bheem Ext. Ka-9.
Devi Deen Anuragi P.W.6 is the witness who produced student register where victim was studying. He has proved photocopy of the extracts of register Ext. Ka-10 wherein date of birth of the victim is registered as 15th October, 1993. He has also deposed that on 25th March, 2009 from 7.30 AM to 10.30 AM second paper of civic for intermediate classes was scheduled. He has proved photocopy of the schedule and marksheet of the victim Ext. Ka-11 and Ka-12.
Dr. Gyanendra Neekhara P.W.7 is the radiologist who x-rayed the victim on 12th June, 2009 on the reference made by Dr. Rashmi Sharma P.W.3. He has proved the X-ray report Ext. Ka-13 X-ray plate material Ext.-2 Hari Singh P.W.8 has deposed that on 25th March, 2009 in the morning he was going to Rath from Kulpahar by bus. He had seen Lalla of his village, while travelling on bus, Lalla of his village driving a motorcycle and Mansi was riding on its pillion, he had seen the victim sitting between them on the pillion. They were going towards Mahoba. After 20 days he came back to his village and came to know that victim had eloped then he informed that Lalla and Manshu were with her.
The appellants in their statements recorded under section 313 Cr.P.C. had denied the facts stated by the prosecution witnesses. According to them victim P.W.2, Baldev Prasad P.W.1, Hari Singh P.W.8 were giving false evidence. According to Manshu he was falsely implicated due to village politics. According to Lalla on 25th March, 2009 he had gone to Kheiri Lakhimpur to get his warrant cancelled but due death of a lawyer application could not be moved. On 26th March, 2009 he had filed fresh bail bonds and personal bond. According to Bheem victim and her family were cordial. They often made allegations against the innocent persons and extract to earn money from them.
Lalla D.W.1 has deposed that his father was posted in Lakhimpur Kheiri where a criminal case was registered against him in the year 2000. On 24th March, 2009 he had gone to Lakhimpur Kheiri. On 25th March, 2009 application was moved, on his behalf bail application was moved. He had signed the order sheet on that day. He has filed certified copies thereof Ext. Kha-1 and Kha-2, copy of the charge sheet Ext. Kha-3. According to him on 26th Marchy, 2009 he was directed to file fresh surety bond and personal bond. His village situates at the distance of 400-450 kms. from Lakhimpurkheiri District Head Quarter. During 25th/26th he remained at district Lakhimpur Kheiri. In the defence other documentary evidence was also filed.
The learned trial Judge had rejected the defence argument based on medical evidence and copy of the parivar register reflecting the victim to be aged above 18 years and preferred to rely on the age of the victim entered in the student register. He has also disbelieved the evidence of Lalla alias Samarat alias Yadvendra D.W.1, substantiated by Ext. Kha-1 to Kha-3. He also rejected the plea of delay in lodging the FIR. He found the evidence of the victim P.W.2 worthy of reliance.
Age of the victim in the present case is of not much significance because according to her evidence she was kidnapped under threat but in the present case charge has been framed under section 363 Cr.P.C. which necessitates determination of the age of the victim. on one side there is evidence of Devideen Anuragi P.W.6, substantiated by the extracts of student register Ext. Ka-10 wherein her date of birth has been shown as 15th October, 1993 and the date of the occurrence is 25th March, 2009. As against this the defence relies on the medical evidence, copy of voter list wherein on Ist January, 2005 age of the victim has been shown to be 22 years. In addition to that on behalf of the defence certified copy of the parivar register Ext. Kha-7 has been filed wherein year of birth of victim has been entered as 1986. The argument of the appellants is that that on the date of occurrence admittedly victim was high school passed and copy of the high school certificate has not been filed by the prosecution. The learned counsel for the appellant has referred the case of Jarnail Singh Vs. State of Haryana (2013) 7 SCC 263. In this case the Hon'ble Apex Court in para 22 of the report while referring Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 has proceeded to observe in para 23 of the report the following:
"Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
According to learned counsel for the appellants in accordance with Clause-a of Sub Rule 2 of Rule 12 Matriculation certificate and in absence whereof birth certificate of the school first attended and in absence whereof birth certificate given by local authority and in absence of either of the three, opinion of the medical board would be considered with margin of one year on the lower side. Learned counsel has drawn attention of the Court towards Ext. Ka-10 from which it is gathered that victim was admitted in Class-9 there. On the strength of these facts learned counsel for the appellant submits that it is not the birth certificate of the school first attended by the victim. The learned trial court has committed legal error in placing reliance on Ext. Ka-10.
If those arguments are taken to its logical end the result would be that testimonies of Dr. Rashmi Sharma P.W.3 and Dr. Gyanendra Neekhara P.W.7 would also become inadmissible because no medical board for the purpose was constituted and entries in the parivar register and voter list at the most can be said relavant under section 35 of the Evidence Act. They are not relevant under Rule 12 of the Juvenile Justice Rules, 2007.
After that the only evidence which can be said to be relevant and admissible is evidence of Baldev Prasad, P.,W.1 and the victim P.W.2 disclosing the age of the victim at the time of occurrence to be 16 years.
The learned trial court while holding victim to be aged about 16 years has placed reliance on this evidence.
The second course open for the Court to determine the age of the victim is that in absence of any evidence as envisaged in Rule 12 of Juvenile Justice Rule, 2007, all the pieces of evidence referred hereinabove may be considered and evaluated and whichever is found worthy of reliance, can be relied upon.
In the case of Jarnail Singh (supra) the Hon'ble Apex Court was not confronted with the situation where evidence envisaged in Rule 12 was not available. Therefore, in my opinion in the present case the learned trial Judge has not committed any illegality while placing reliance on date of birth registered in the student register, extracts whereof is Ext. Ka-10 and duly substantiated from the statements of the father of the victim Baldev Prasad and victim P.W.2.
The first argument submitted on behalf of the appellant is rejected.
According to date of birth as disclosed in Ext. Ka-10 victim was below 16 years of age. Her character, her affection or her wishes were not material. The only material thing is that she was taken out of the keeping of the lawful guardianship of Baldev Prasad P.W.1.
On this point, I think statements of Baldev Prasad and victim P.W.2 are trustworthy enough.
On behalf of the appellants it has been submitted that name of Bheem was not in the FIR. His participation is doubtful. Since his complicity in the crime came into picture on the basis of the statement of the victim recorded under section 164 Cr.P.c. keeping in view the peculiar circumstances of the case this argument has no substance, hence rejected.
The plea of alibi has been rejected by the trial court. I have gone through the documentary evidence filed on behalf of the appellant Lalla and gave close scrutiny to Ext. Kha-2.
Certified copy of the ordersheet reveals that there is cutting on the order sheet which has not been authenticated by putting his initials by the Magistrate. Signature of the appellant Lalla on the margin of the order sheet is no evidence that he was present on 25th March, 2009 in the court of CJM, Lakhimpur Kheiri. The order sheet drawn by the reader has not been signed by the CJM, therefore, I do not think Ext. Kha-2 can be said to be confidence inspiring. It appears to be waste paper. Thus the fact that on 25th March, 2009 appellant was present in the court of CJM, Lakhimpurkhiri should not be proved. He has been named by the victim for the kidnapping committed on 25th March, 2009. Thereafter according to the victim Lalla and Manshu left her with Bheem where she was kept for 2 days and on the next following day brought to Mahoba where Manshu and Lalla joined Bheem. Presence of Lalla on 26th March, 2009 before the court of CJM, Lakhimpur Khiri does not establish his alibi on 25th March, 2009 or on 28th March, 2009. Argument advanced on his behalf is rejected.
Now remains the question of re-examination and re-evaluation of the probative force of star witness P.W.2. On two grounds veracity of her testimony has been impeached on behalf of the appellants (I) she did not raise any alarm while travelling from Pnavari to the village of Bheem, or when Bheem took her to the house of his maternal uncle from there and further when she was brought to Mahoba and subsequently taken to Kanpur and where she was kept in confinement for more than two months. The second ground of attack is that in her statements there are major contradictions on material points.
Since she was under 16 years of age, her affection, her conduct is not relevant, however, she has given reason for not raising the alarm at the time of kidnapping or travelling or when she was kept in confinement. The Hon'ble Apex Court in the case of State of Punjab Vs. Gurumeet Singh was confronted with similar argument and the Hon'ble Apex Court has rejected the same with the following observation:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. The testimony of the victim in such cases is vital unless there are compelling reasons which necessiate looking for corroboration of her statement, the court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. The evidence of a victim of sexual assault stands almost on part with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding."
Thus first ground cannot be accepted. The second ground looses much of its value because the victim is under 16 years of age. She may have stated that she once loved Manshu. She may have stated that she was visited by Lalla at her house 2-3 times, her testimony on the point of her kidnapping, keeping her inconfinement for subjecting her to physically abuse and commission of rape by all the three appellants remained intact during the cross examination. For this reason I think that her evidence on these points is trustworthy. It discloses true account of how the appellants committed these crimes with her and against her wishes.
Evidence of Baldev Prasad P.W.1 remained intact during the cross examination. He has given reason for delay in lodging the FIR. According to him after coming to know that the appellants had kidnapped his daughter, he was searching for the appellant and his daughter. More so in the case of rape delay in FIR is not of much significance. I think Baldev Prasad P.W.1 has successfully explained the delay in FIR and his testimony is also trustworthy.
Hari Singh, P.W.8 has claimed to have a glimpse that victim was been taken on a motorcycle by Manshu and Lalla. According to the victim she was made to sit on the motorcycle of Bheem. Lalla and Manshu were on separate motorcycle and they were following Bheem. This is a contradictory version but it does not adversely affect the veracity of prosecution case because a person travelling from the bus going on the opposite side at the best could have a glimpse. For him important thing was the identity of the persons travelling. It was not important for him in what manner Lalla and Manshu, both residents of his village and Bheem resident of another village of another district were going. This might be possible that he had seen the persons, identified the known persons. He gathered what could be seen in a glimpse. It might be his bonafide error. Therefore, on the basis of this discrepancy, I do not think that his deposition can be discarded. From his evidence statement of victim P.W.2 further stands corroborated.
No other argument has been raised on behalf of the appellants. Enmity is a double edged weapon. It cannot be made a ground to reject the reliable and trustworthy evidence produced by the prosecution.
Thus appeals have no substance. The findings recorded by the learned trial Judge are well substantiated from the record. Cogent reasons have been given in support thereof. Evidence has been rightly appreciated by the learned trial Judge. The impugned judgment and orders needs no interference. Consequently the appeal Nos. 1115 of 2013, 1077 of 2013 and 1156 of 2013 are dismissed. Appellant Manshu is in jail. Appellants Bheem and Lala are on bail. Appellants Manshu and Lalla shall serve out their remain sentence.
The court below is directed to procure the attendance of appellants Bheem and Lalla and send them to jail to serve their sentences. The period already undergone by them shall be adjusted in accordance with provisions under section 428 Cr.P.C.
Office is directed to communicate this order to the court concerned for compliance forthwith and to send back the lower court record.
Order Date :- 04.11.2016 MT**