Court No. - 49
Case :- CRIMINAL APPEAL No. - 1762 of 2020
Appellant :- Neetu
Respondent :- State of U.P.
Counsel for Appellant :- Asheesh Kumar Tiwari
Counsel for Respondent :- G.A.
Hon'ble Anil Kumar Ojha,J.
Heard Sri Asheesh Kumar Tiwari, learned counsel for the appellant, Sri Ravi Prakash Pandey, Sri Ashish Tripathi and Ms. Seema Shukla, learned A.G.As. for the State and perused the record.
Challenge in this Criminal Appeal is the judgement and order dated 12.02.2020 passed by Additional Session Judge/Fast Track Court No. 1, Muzaffar Nagar in Session Trial No. 652 of 2014 (State Vs. Neetu) arising out of Case Crime No. 78 of 2014 under Sections 363, 366, 376 I.P.C., P.S. Charthawal, District Muzaffar Nagar whereby learned Additional Sessions Judge/Fast Track Court No. 1 has convicted and sentenced the appellant under Section 366 I.P.C. with 10 years' Rigorous Imprisonment and fine of Rs. 25,000/-; in default of payment of fine, one year additional Simple Imprisonment. And under Section 376 I.P.C. with 10 years' Rigorous Imprisonment; Rs. 25,000/- fine, in default of payment of fine, one year additional imprisonment. All these sentences have been directed to run concurrently.
Tersely put the facts of prosecution are that complainant, Smt. Sudesh lodged an F.I.R. against the appellant on 16.02.2014 at 16:35 hours in P.S. Charthawal, District Muzaffar Nagar stating therein that on 5.01.2014, appellant Neetu enticed away her daughter. On 15.02.2014, victim came back to her house. Appellant, Neetu forcibly committed sexual intercourse with the victim.
On the written report submitted by complainant, Smt. Sudesh, a case was registered against the appellant, Neetu under Sections 363, 366 I.P.C. Investigating Officer started investigation in this case and recorded the statement of victim and witnesses; medico-legal of the victim was also done. After investigation, Investigating Officer submitted charge-sheet against the appellant under Sections 363, 366 and 376 I.P.C.
The then Additional Chief Judicial Magistrate, Court No. 2, Muzaffar Nagar on 3.04.2014 took the cognizance in the matter and committed the case of appellant, Neetu to the Court of Sessions on 2.07.2014.
On 2.08.2014, Sessions Judge, Muzaffar Nagar framed charges against appellant under Sections 363, 366, 376 I.P.C. Appellant denied the charges and claimed trial.
Prosecution was directed to prove the charges against appellant.
Prosecution adduced P.W. 1, Sudesh, who is informant of the case; she supported the prosecution story. P.W. 2 is the victim herself who has also supported the prosecution version. P.W. 3, S.I. Mange Ram investigated the case and proved the Site-Plan Ex. Ka-4, charge-sheet, Ex.-5; P.W. 4, Dr. Smt. Anupama Singh conducted the medico-legal of the victim and proved medical report Ex. Ka-6. P.W. 5, Head Constable-171, Prathvi Singh has proved the chick F.I.R. Ex. Ka-7, Carbon-Copy of G.D. Ex. Ka- 8, Carbon-Copy of G.D. of Rapat No. 39 Ex. Ka-9.
After conclusion of evidence, statement of appellant, Neetu was recorded under Section 313 Cr.P.C. Appellant, Neetu denied the evidence and stated that victim was major at the time of alleged incident. Victim came to him out of her own sweet will. Appellant has been falsely implicated owning to enmity and village factionalism.
Appellant produced D.W. 1 in support of his case.
After hearing learned counsel for the prosecution and defense, learned Additional Sessions Judge/Fast Track Court No. 1, Muzaffar Nagar convicted and sentenced the appellant as aforesaid.
Submission of learned counsel for the appellant is that victim was a consenting party; victim went to accused out of her own sweet will. Charges of rape are not proved beyond reasonable doubt. Appellant is entitled to benefit of doubt.
Per-contra, learned A.G.A. vehemently opposed the above submissions and contended that prosecution has proved its case beyond reasonable doubt.
It is settled law that in case of rape, if evidence of prosecutrix/victim inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars, if for some reason, the court finds it difficult to place implicit reliance on her testimony, it may look for evidence, which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
In The State of Punjab v. Gurmit Singh & Others, 1996 JIC 611 (SC), the Hon’ble Apex Court has held as follows:
“Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”
In State of Himachal Pradesh v. Gian Chand (2001) 2 JIC 305 (SC), the Hon’ble Apex Court has held as follows:
“In State of Punjab Vs. Gurmit Singh & Ors., (1996) 2 SCC 384, one of us, Dr. A.S. Anand, J. (as His Lordship then was) has thus spoken for the court A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. The approach adopted by the High Court runs into the teeth of law so stated and hence stands vitiated.”
In Raja and others v. State of Karnataka (2016) 10 SCC 506, Hon'ble Apex Court has held as follows:
" It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.
The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non- consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."
In State of U.P. Vs. Chhoteylal, AIR 2011 SC 697, Hon'ble Apex Court has held that it is impossible for an illiterate villager or rustic lady to state with precision the chain of events as such witnesses do not have sense of accuracy of time etc. Expecting hyper technical/rustic/villager witnesses is an insult to justice-oriented judicial system and detached from the realities of life. In the case of rustic lady eye witnesses, court should keep in mind her rural background and the scenario in which the incident had happened and should not appreciate her evidence from rational angle and discredit her otherwise truthful version on technical grounds.
In the light of above settled legal position the evidence of PW2 victim is being evlauated and weighed.
Appellant, Neetu in his statement recorded under Section 313 Cr.P.C. has denied the evidence and has specifically stated that victim was major at the time of alleged incident and she came to him leaving her house voluntarily.
Now only one point survives for consideration whether victim went voluntarily to the appellant or she was abducted and raped by him.
P.W.2, victim before the Court in her Examination-in-Chief has deposed that on 5.01.2014 in the morning at 10:00 a.m. while she was going from her house to her father taking bread for him at the bricklin. On the way, appellant, Neetu met the victim and said that his son is ill and is admitted in the hospital and told her to accompany him for blood transfusion. Victim replied that she will ask from his father then appellant said he will talk from her father. Appellant, Neetu took her in car after putting cloth around her eyes. Appellant took her in the field of sugar-cane. There, she was administered toxic material and committed rape upon her in the sugar-cane field. Thereafter appellant along- with his companion took her in one room where all of them again committed rape upon her. She escaped from the clutches of the appellant after 14 days and came to her house and told about the incident to her mother. Then her mother lodged an F.I.R. against the appellant. Her statement under Section 164 Cr.P.C. was also recorded before the Magistrate. She proved her statement under Section 164 Cr.P.C. in the Court.
She was extensively cross-examined by the defence. At page no. 7 in her cross-examination, this witness has stated that when she was being taken away, she yelled and made hue and cry. She tried to open her eyes and tried to slap the appellant too but appellant caught her hand. The above evidence of victim in her cross-examination (at page no. 7) is indicative of the fact that she was not a consenting party.
Moreover, it is apparent from the record that victim herself came back to her father escaping from the clutches of the appellant. If she would have been a consenting party, she may not have returned herself to her parents.
In view of the above facts and circumstances, I am of the considered view that victim was not a consenting party, she struggled to save herself from the clutches of appellant; she made hue and cry. It is also pertinent to note that she was not arrested by the police as she herself came to her house escaping from the clutches of appellant.
The upshot of the above discussion is that, prosecution has proved charges under Sections 366 and 376 I.P.C. beyond reasonable doubt against the appellant.
Perusal of the impugned judgement reveals that appellant, Neetu has been convicted under Section 366 I.P.C. with Rigorous Imprisonment of 10 years and Rs. 25,000/- fine, in default of payment of fine, one year additional Simple Imprisonment and under Section 376 I.P.C., 10 years' R.I. and Rs. 25,000/- fine. In default of payment of fine, one year additional Rigorous Imprisonment. Above sentences have been directed to run concurrently.
Considering the facts and circumstances of the case, I deem it appropriate to reduce the sentence under Section 366 I.P.C. from 10 years to 8 years and under Section 376 I.P.C., from 10 years to 8 years. So far as fine is concerned, amount of fine shall remain the same, however in default, appellant will have to undergo sentence of three months simple imprisonment concurrently under Sections 366 and 376 I.P.C. Accordingly, conviction of the appellant is upheld, however, sentence is modified.
In view of the above, the instant appeal is allowed partly in aforesaid terms.
Let a copy of this order/judgment be certified to the Court below for necessary information and follow up action. Lower court record be also transmitted to the court concerned.
Order Date :- 26.10.2021
A. Mandhani