Court No. - 87
Reserved on 6.10.2020 Delivered on 5.1.2021
Case :- CRIMINAL APPEAL No. - 5325 of 2019 Appellant :- Pratap Respondent :- State of U.P.
Counsel for Appellant :- Sanjay Singh Counsel for Respondent :- G.A.
Hon'ble Suresh Kumar Gupta,J.
1. Feeling aggrieved and unsatisfied with the impugned judgement and order dated 24.6.2019 passed by Additional Session Judge Court No. 4, Aligarh in Sessions Trial No. 804 of 2014 (State Vs. Pratap) under Sections 323, 376 IPC, P.S. Atrauli, District Aligarh, this criminal appeal has been preferred by the appellant-Pratap, whereby the learned court below convicted and sentenced the appellant under Section 376 IPC for 10 years rigorous imprisonment and to pay the fine of Rs.15,000/- and under Section 323 IPC for six months simple imprisonment is awarded.
2. Brief facts of the case are that a first information report was lodged by one Sri Surendra Singh son of Lal Singh, resident of village Usmanpur, P.S. Atrauli, District Aligarh regarding the incident dated 25.6.2014 at 12:00 pm on 26.6.2014 at 9:15 am against the appellant, which was initially registered as case crime No. 333 of 2014 under Section 376 IPC, P.S. .Atrauli, district Aligarh, later on section 323 IPC was added.
3. PW1 father of Surendra Singh lodged FIR by means of this written complaint before Inspector in charge of P.S. Atrauli on 26.6.2014 against accused appellant with the allegation that on the intervening night of 25.6.2014 at 12:00 pm his daughter in law was sleeping in courtyard of the house then appellant accused-Pratap entered his house and dragged his daughter in law inside the room and forcefully raped her. At that time of incident, she was alone at the home with her one year old daughter. On hearing noise of the daughter in law, he, his son Pramod who was sleeping on the roof of the house and neighbours came on spot. They saw accused- Pratap running away from spot. Then, daughter in law told about the incident that happened against her. He brought the daughter in law alongwith his son to the police station and lodged the FIR by way of written complaint against the appellant registered as case crime No. 333 of 2014 under Section 376 IPC, P.S. Atrauli, District Aligarh.
4. After lodging the FIR under Section 376, 506 IPC investigation of this case was handed over to the Investigating Officer PW-3 SHO Suresh Itoriya. During investigation, firstly Investigating Officer recorded the statement of victim and her husband who was present on the spot and later on, reached at the place of occurrence and on the pointing out of the first informant sketch map of occurrence was prepared and on 26.6.2014, he obtained the medical examination report and medical report as well as supplementary medico legal report of the victim. Then she also observed the statement of the victim recorded under Section 164 Cr.P.C. and after recording the statement of all the witnesses, Investigating Officer completed the formality of the investigation and filed the charge sheet No. 188 of 2014 dated 14.6.2014 against the appellant under Sections 376, 323 IPC before ACJM-IIIrd, Aligarh.
5. After submitting the charge sheet, before the ACJM court. ACJM court taken cognizance in this matter and committed the case for trial before sessions court wherein it is registered as sessions trial No. 804 of 2014. Sessions Judge transfer this case to Additional Sessions Judge/Fast Track Court, Aligarh for trial where learned trial court framed the charges against the appellant on 2.2.2015, under Sections 376, 323 IPC. The charge was readwith to the accused appellant and the appellant denied the charges levelled against him and claimed to be trial.
6. In support of the prosecution case, prosecution has examined six witnesses. PW 1 (Surendra Singh) who is the father in law of the victim and complainant of the present case, has supported the written report as Exhibit Ka 1; PW 2 (Head Constable, Tajua Khan) who proved the Chik Report No. 262 of 2014, crime No. 333 of 2014 as exhibit Ka 2 and GD Entry No. 15, 9:15 hours dated 26.6.2014 as Exhibit Ka 3; PW 3,Investigation Officer SHO Suresh Itoriya who proved the site plan as Exhibit Ka 4 and charge sheet was Exhibit Ka 5; PW 4 Dr. Vanya Mishra who prepared the medical report of the victim as Exhibit Ka 6 and supplementary report as Exhibit Ka 7. PW 5 is the victim who proved the statement under Section 164 Cr.P.C. as Exhibit Ka 8. PW-6 Dr. Heera Singh who examined internal injury found on the body of the victim and proved the medical report as Exhibit Ka 9. Thus, the prosecution relies of PW 1 to PW 6 as oral evidences and Exhibit Ka 1 to Ka 9 as documentary evidences.
7. After examination of these witnesses, statement of the accused-appellant was recorded under Section 313 Cr.P.C. Accused appellant denied all the charges levelled against him and stated that due to enmity, all the witnesses had given false statement against him and further stated in his defence that complainant took some money from him, whenever he want to ask, he felt bad and for this reason, complainant lodged the false report against him. No defence witness was examined on behalf of the appellant.
8. After appreciating and considering the rival contention of the parties and scrutinizing the evidences, learned sessions court find the accused guilty and convicted him for the charged offences as aforesaid.
9. I have heard Sri Sanjay Singh as counsel for the appellant, Sri Anirudha Singh learned AGA and perused material available on record.
10. Learned counsel for the appellant submitted that oral evidence, i.e. statement of the victim recorded under Section 164 Cr.P.C. did not corroborate with the medical evidence i.e. statement of Dr. Vanya Mishra. According to PW 1, there is no definite opinion be given regarding rape as there is no internal or external injury on the body of the victim. Learned counsel further submitted that there is major contradiction in the statement of victim so the statement of victim is not reliable and learned trial court wrongly convicted the appellant without appreciating the evidence on record. He also submitted that the main star witness is the husband of the victim, namely, Pramod. He has not been examined by the prosecution and no reason is stated by the prosecution for not examining the eye witness-Pramod. It is next submitted that the statement of the Investigating Officer also does not support the prosecution version as from the place of occurrence, neither the broken bangles of the victim were recovered nor Investigating Officer had found broken latches of door on the spot. Lastly, he has submitted that the appellant is in jail since 7.7.2014. He is very poor person and has no any means of income so during trial, he could not engaged the counsel and prayed for leniency.
11. Learned AGA for the State further added that the testimony of the victim is corroborated with the medical evidence (i.e. MLC of the prosecutrix). It is further submitted that the absence of major external injuries on body of the prosecutrix on the date of her medical examination would not necessarily mean that she had not been sexually assaulted or she had not resisted during the time of assault.
12. Based on these submissions counsel for the State urged that this Court may not interfere with the well-reasoned order passed by the learned Trial Court convicting the Appellant for the alleged offence.
13. I have heard the learned counsel for the parties and carefully examined the impugned judgment and the material available on record as well.
14. It is a settled principle of law that in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration. Thus, a conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The Apex Court has time and again held that the sole testimony of the prosecutrix is sufficient to hold the accused guilty if it inspires confidence and the same principles have been reiterated in Vijay v. State of Madhya Pradesh reported in (2010) 8 SCC 191. Relevant paragraph of the judgment reads as under:
"14.Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
15. In Gagan Bihari Samal v. State of Orissa reported as (1991) 3 SCC 562, The Hon'ble Supreme Court of India whilst observing that corroboration is not the sine qua non for conviction in a rape case, held as follows:
"6.In cases of rape, generally it is difficult to find any corroborative witnesses except the victim of the rape. It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753] as follows:
"Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society.
A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors, the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated."
16. The above observation has been made by this Court relying on the earlier observations made by this Court in Rameshwar v. State of Rajasthan [1952 SCR 377, 386 : AIR 1952 SC 54 : 1952 Cri LJ 547] with regard to corroboration of girl's testimony and version. Vivian Bose, J., who spoke for the Court observed as follows: (SCR p. 386) "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practise that there must, in every case, be corroboration before a conviction can be allowed to stand."
17. In view of the settled law, we shall now examine whether the evidence adduced by the prosecution, particularly the testimony of the victim, is trustworthy, credible and can be relied upon. From the perusal of the record, it transpires that the prosecutrix has deposed on same lines and there are no material contradictions in her testimonies. English Translation of the initial statement under Section 164 Cr.P.C. (Ex. Ka-8) made by the victim P.W.-5 of this case before the Magistrate on 30.6.2014 after four days of incident which is reproduced herein below:-
" The date of incident is 25.6.2014 which was after 12 at night when I was sleeping on my bed, then, Pratap came to my bed and put a cloth in my mouth, beat me and forcibly raped me. I was alone at my house alongwith my one year old daughter. My husband went to job. I was sleeping in the courtyard. Accused took me to the room and forcefully raped me. Accused Pratap belonged to resident of same mohalla and I have no connection with him. I got out of his clutches and during incident, I also got injury in my finger and head. I locked him in room and went to call my mother in law and father in law then he broke the back door and ran away. We have no rivalry with the family of Pratap. I told all the incident to my mother in law and father in law, they called my husband by phone."
18. Now with regard to the medical evidence as PW-4 Doctor Vanya Mishra stated before the Court that on 26.6.2016 she examined the victim. Height of the victim was 148 cm and weight was 37 kg during internal examination she found that hymn healed and old torn and vaginal swab taken for slide for confirmation of delivered spermatozoa. As per pathology report, no spermatozoa was found. She opined by means of supplementary affidavit exhibit Ka 7, no opinion could be given regarding rape of the victim and for examination of external injury, victim was referred to District Hospital. In her cross examination, doctor opined that as no spermatozoa found on the body of the victim so it is not possible that sexual intercourse was done on 26.6.2014 at 12:00 night.
19. PW-6 in his statement stated that he examined victim and prepared the injury report Exhibit Ka 9. As per injury report, he found that one abrasion of 1 cm x 0.5 cm, on the left side front of head, 3.5 cm above left eye brow oval shaped and second abrasion of 1 cm x 0.7 cm, on the front of left knee front oval shaped. Both the injuries were simple in nature and caused by blunt object of about 2/3rd day old.
20. Learned counsel for the appellant argued that as there was no spermatozoa found on the body of the victim and no external or internal injury found on the body of the victim which shows that the rape was not committed upon the victim.
21. It is always not necessary to find spermatozoa on the body of the victim due to many reasons. In Prithi Chand Vs. State of Himachal Pradesh reported in AIR 1989 SC 702:- “Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case.” Where no external or internal mark on the private part of the victim of rape was found in medical examination, the testimony of the prosecutrix that she was raped by appellant cannot be discarded. Discovery of spermatozoa in the private part of victim is not a must to establish penetration. Even a slight penetration of penis into vagina would constitute rape.
22. One of the argument is that there are several contradictions in the statement of victim. Victim, in her statement stated that at the time of occurrence, husband was went to job and he was not present in the room but during cross-examination she stated that the husband was not present at the time of incident on the roof of his house but he was sleeping in another house which was situated about 50 meter far from the incident where he was sleeping with his father. Due to this contradiction, whole prosecution is doubtful.
23. This submission of the learned counsel for the appellant is not acceptable. Such type of contradiction is natural, if it is accepted that she deposes false against the version of FIR regarding presence of the husband. If one thing is false then whole case is not shattered. Maxim ‘falsus in uno’ , is not applicable in criminal cases.
Maxim of Falsus is Uno, Falsus in Omnibus:-
Principle of “false in one, false in all” cannot be applied in relation to the depositions of a witness who has been found lying on a particular fact and whose remaining part of testimony is otherwise truthful. Even if major portion of evidence of a witness is found deficient but residue is sufficient to prove the guilt of the accused, notwithstanding the acquittal of number of co-accused-
conviction can be recorded of some accused persons. It is the duty of courts to sift grain from chaff. [Kulvinder Singh Vs. State of Punjab reported in AIR 2007 SC 2868 and Radha Mohan Singh Vs. State of U.P. reported in 2006 (2) ALJ 242 (SC)].
24. Submission of the learned counsel for the appellant is that there is material contradiction, improvement and exaggeration in the statement of the victim and the statement of PW-1(father in law of the victim). Such type of contradiction is bound to happen during recording of the statement. Hon'ble Apex Court Ashok Chaudhary Vs. State of Bihar reported in 2008(61) ACC 972 (SC) have opined:-
“Generally eye witness make improvements and exaggerations in their statement which are quite natural due to many factors like capacity of witness to grasp, his status, distance and time elapsed after incident etc. If the testimony of an eyewitness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments ad discrepancies in the testimony are only normal and not material in nature, then the testimony of an eye witness has to be accepted and acted upon distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party’s case material discrepancies do so.”
25. One of the argument of learned counsel for the appellant is that investigating officer have not found any blood or stained cloth and not found broken bangles on the spot and Investigating Officer did not show the presence of witness in site plan Exhibit Ka-4. Thus, whole investigation is false and no reliance could be placed in such investigation. In my opinion any irregularity or deficiency in investigation by Investigating Officer need not necessarily lead to rejection of the prosecution evidence when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent.
26. On perusal of statements of PW-1 and PW-5, it reveals that the statements of both the witnesses also corroborate with each other and oral evidence of the victim is also in consonance with medical evidence as the victim sustained injury during incident which also strengthen the prosecution version.
27. One of the argument is that husband of the victim was star witness who has withhold by the prosecution and not produced before the trial court which is also fatal to the prosecution.
28. This submission of the learned counsel is not acceptable as Section 134 of Evidence Act 1872 say, “ No particular number of witness shall in any case be required for the proof of any fact.”
29. Argument of learned counsel have no force. In this case victim PW-5 as well as father in law (PW-1) examined before the Court. They successfully able to establish the prosecution version so there is no need to examine the husband of the victim.
30. The evidence of victim PW-5, corroborate the version of prosecution. She clearly stated that forcibly sexual intercourse committed by the appellant without her consent. In such situation, the court shall presume that she did not consent under Section 114- A of Evidence Act. So the appellant rightly convicted by the Sessions Court.
31. On perusal of the entire evidence available on record and considering the facts and circumstances of this case, I am of the view that the prosecution is able to prove the charge under sections 376, 323 IPC beyond shadow of doubt. So, the appeal of the appellant deserves to be dismissed.
32. So far as regard the quantam of sentence, learned counsel for the appellant submitted that the appellant is very poor person and appellant is languishing in jail since 7.7.2014. So the learned counsel pray for leniency while awarding the sentence.
33. After considering the entire facts and circumstances of this case, this Court is of the view that seven years incarceration with all remissions under Sections 376, 323 IPC would suffice for the end of justice.
34. Fine amount shall be unaltered.
35. The Jail Authority will calculate the period of his incarceration and decide the same in accordance with jail manual.
36. The appeal is dismissed on the point of conviction and partly allowed only on the quantam of sentence.
37. Record of this case be transmitted to the trial court for necessary compliance.
Order Date :- 5.1.2021 Ankita