1. Heard Sri Diwakar Singh, learned counsel for the appellant and Sri Sharad Dixit learned AGA for the State.
2. The present criminal appeal has been filed by Mahendra Harizan challenging the judgment of conviction and sentence awarded in S.T. No.114 of 2008, under Section 376 (2) (e) and 506 IPC of order dated 31.3.2009 passed by Additional Session Judge, Room No.2, District- Pratapgarh.
3. According to the prosecution version a first information report was lodged by Kalawati in Police Station-Patti, District-Pratapgarh on 4.1.2008 at 10.15 a.m. through a written report alleging that, at about 4 P.M., her daughter was picking Kanda, then Mahendra Harizan came there and started irrelevant talks and took her to nearby sugarcane field of Sipahi Shukla and after removing his trouser and salwar of the victim, raped her. When her daughter raised alarm, he fled away threatening her that if she will tell anyone else she will be killed. On this, a case under Section 376/506 IPC was registered at Police Station-Patti, District-Pratapgarh. The victim was sent for medical examination and for X-ray to establish her age, her statement under Section 164 Cr.P.C. was also recorded and charge-sheet under Section 376/506 IPC was submitted. After taking cognizance the case was committed to the Court of Session. Trial court framed charge under Sections 376, 506 IPC. Accused pleaded not guilty and claimed to be tried.
4. Prosecution examined P.W.1 Kalawati, P.W. 2 Victim, P.W. 3 Dr. Sulbha Pathak, Zila Mahila Chikitsalya, P.W.4 Sub-Inspector Dinannath Tripathi, P.W.5 Constable Krishna Kumar Mishra and P.W.6 Dr. R.S. Verma radiologist.
5. Statement of accused was recorded under Section 313 Cr.P.C. No defence witness was examined from the side of accused. Learned court below after going through the evidence on record and hearing the parties, convicted the accused under Sections 376 (2) (e) and 506 IPC and directed the accused to undergo 10 years R.I. and also to pay Rs.1000/- as fine under Section 376 (2) (e) IPC and to undergo one year R.I. under Section 506 I.P.C. In default of payment of fine he was further directed to undergo three months additional imprisonment. Feeling aggrieved, this criminal appeal has been filed.
6. It was submitted by learned counsel for the appellant that FIR is anti timed. Date of occurrence is 31.12.2007 but FIR has been lodged on 4.1.2008. There is no explanation of delay. Burden of proof is on the prosecution and evidence of P.W.2 is not worth relying.
7. Before appreciating the evidence on record it will be proper to discuss the evidence of Dr.Sulbha Pathak P.W.3, this witness has examined the victim, and prepared her medical examination report on 5.1.2008 at about 3.00 p.m. at District Hospital, Pratapgarh. This witness has proved injury report Ext. Ka-3. A perusal of the Ext. Ka-3 reveals that no mark of external injury over her body was found, but hymenal tear was found towards left laterally. There was no bleeding or redness present. This witness has further proved supplementary report Ext. K-4, and according to this supplementary report, radiological age of patient was about 12 years, one more thing is important Ext. Ka-12 is the report of Vidhi Vigyan Prayogshala, and according to this report, blood was found on the salwar of the victim. From the statement of P.W.3 and injury report Ext. Ka-3, it is proved beyond doubt that the hymenal tear was present and blood came out when tear occured, and blood stained her salwar. It is worth noting that the incident is of 31.12.2007 and victim was medically examined on 5.1.2008, this explains absence of bleeding and redness.
8. P.W. 1 is not the eye witness but she has stated that when her daughter returned in the grove she was weeping, Puja her companion came to call her. Her daughter has narrated the story of rape. She went to the grove and found that her daughter was weeping and she was unable to walk. This fact is relevant under Sections 6 and 8 of the Indian Evidence Act.
9. She further stated that she brought her daughter to her house. Her husband was not present there. When her husband came back, she narrated the entire story to him. Then, they went to the house of the accused to complain but they were threatened by the accused. Due to fear, they did not go to police station. After three days she went to police station, she got the report scribed by a person and after putting her thumb impression it was handed over to the police station. This witness has proved written application Ext. Ka-1. A suggestion was given to her that her Dewar had sold his share to mother of the accused. Prior to this incident and due to which she was inimical to the accused. This witness has denied to this suggestion.
10. P.W.2 is the victim she has stated that on the date of occurrence at about 3.00 p.m. She had gone to pick kanda from the grove along with Puja and Rana. Mahendra came there and asked Rana as to whether she would like to take sugarcane then she said that if he will give sugarcane, then they will take it Puja and Rana told her that you go and collect sugarcane from Mahendra. She went with Mahendra then on the way he started talking irrelevant. When she reached near the sugarcane field Mahendra took her inside the sugarcane field, then he caught and threw her on the ground and after removing his own trouser and her salwar, he raped her. She started crying then Mahendra left her and gave three sugarcanes and sent her back with threat that if she will tell it to anybody she will be killed. Then somehow she reached out limping and told the entire incident to Rana and Puja. They came to her house and informed her mother. Then her mother reached there and brought her back to his house. She took her to the house of the accused where both were threatened and asked to leave. Her father came in the night then on second day, they all went to the police station, where her report was not lodged. After fourth day, a first information report was lodged, her statement was recorded in the Court. She was medically examined and interrogated by the Investigating Officer. The victim has proved her statement under Section 164 Cr.P.C. which is Ext. Ka-2. The victim identified the accused in the Court to be the person, who had raped her. She has also stated that her family members are not inimical with the accused. She has further stated that the place where she was raped is 150 to 200 meter away from the place where they were swinging and picking kanda. Nobody else was near the place of occurrence. When she gave the sugarcane to Rana and Puja, they all threw it and nobody consumed it. She has further stated that the male organ was inside her vagina for about one and half minutes to two minutes. She did not notice as to whether it was a total penetration or not, as she was writhing in pain and was crying.
11. In the instant case, plea has been taken that FIR is delayed. A perusal of statement of PW-1 Kalawati reveals that sufficient explanation has been given. PW-1 Kalawati has stated that when her daughter reached home, her husband was not present in the house. When he came, entire episode was narrated to im, then they went to the house of accused to complain, then they were threatened. She went to police station third day becasue first day it was late night and second day she could not proceed due to fear.
12. In the case of State of U.P. v. Manoj Kumar Pandey, AIR 2009 SC 711 the Apex Court has held that normal rule that prosecution has to explain delay and lack of prejudice does not apply per se to rape cases.
13. The explanation given is very natural and plausible.
14. It was pressed by the learned counsel for the appellant that doctor has stated that injury on private part of the victim could have been caused due to any other reason, not necessarily by penetration. On the basis of this statement, it was argued that there is conflict between the occular and medical evidence.
15. In Chhotanney v. State of U.P., AIR 2009 SC 2013 and Mallappa Siddappa v. State of Karnataka, 2009 (68) ACC 725 (SC) it has been held that by the Apex Court that if direct testomony of eye witnesses is reliable, the same cannot be rejected on hypothetical medical evidence, and the occular evidence, if reliable, should be preferred over medical evidence. Opinion given by a medical witness (doctor) need not be the last word on the subject. It is of only advisory character. Opinion of doctor should be tested in the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion.
16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries, which are normally casued by a particular weapon. There is another category where though the injuries found on the victim are of the type, which, according to the doctor, could be possible by any other method, not necessarily the weapon suggested by the prosecution. The occular evidence, being cogent, credible and turst worthy, minor variance, if any, with the medical evidence are not of any consequence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses' account, which had to be tested independently.
17. In the instant case, the victim, who is a 12 years old girl, has categorically stated about the incident. Her statement is corroborated by the hymenal tear and presence of blood on her salwar, which was sent to Vidhi Vigyan Prayogshala. The doctor too has not ruled out penetration. If the injury was caused by some different way, then it was for the defence to prove that injury was not caused in the manner in which prosecution has stated. The only ground the accused has stated in the statement under Section 313 Cr.P.C. is that in order to exert pressure regarding land he has been falsely implicated. The suggestion was given that Dinesh Kumar (dewar of PW-1) has sold his land to the mother of accused, so it is the enmity due to which accused was falsely implicated. PW-1 has denied to this suggestion. Record reveals that sale deed was executed on 22.11.1999, and present incident is of 31.12.2007, so after a gap of 8 years it does not appeal to mind that the appellant will be falsely implicated, that too in a rape case. The statement of victim, medical evidence and report of Vidhi Vigyan Prayogshala proves beyond doubt that it was the present applicant, who has raped the victim.
18. As a consequence, the criminal appeal is liable to fail, and is hereby dismissed. The appellant is in jail. He shall remain in jail to serve out the sentence awarded by the trial court.
Order Date :- May 30, 2014 Subodh/-
(Justice Arvind Kumar Tripathi - II)