Court No. - 70
Reserved on 20.07.2021 Delivered on 21.12.2021 Case :- CRIMINAL APPEAL No. - 3485 of 2019 Appellant :- Ram Bhuwan Yadav Respondent :- State of U.P. and Another Counsel for Appellant :- Sushil Kumar Counsel for Respondent :- G.A.
Hon'ble Rajendra Kumar-IV,J.
1. Present criminal appeal has been filed challenging the judgement dated 14.11.2017 passed by Sri Shrinath Singh, Special Judge, SC and ST Act, Jalaun at Orai, in Sessions Trial No. 17 of 2014 arising out of Case Crime No. 3019 of 2014, under Sections 376, 324, 392 IPC, Police Station Kotwali Orai, District Jalaun, whereby, Trial Court convicted the accused-appellant under Section 376 IPC and sentenced to undergo for 10 years rigorous imprisonment with a fine of Rs. 10,000/-, in default of payment of fine, accused shall undergo further one year rigorous imprisonment. He was further convicted under Section 324 and sentenced to undergo for 2 years rigorous imprisonment with a fine of Rs. 2,000/-, in default of payment of fine, accused shall undergo further one month rigorous imprisonment and he was further convicted under Section 392 IPC and sentenced to undergo for 7 years rigorous imprisonment with a fine of Rs. 5,000/-, in default of payment of fine, accused shall undergo further six months rigorous imprisonment.
2. Brief facts of the present case is that on 20.8.2014, prosecutrix was going to his Sasural. On the way, she sat in one Tempo, in which, two persons and two ladies were already sitting, accused Ram Bhuwan Yadav was also sitting next to her. When Tempo arrived near the roadways, accused-appellant-Ram Bhuwan Yadav took her down Tempo forcibly. When persons sitting in the Tempo and its driver opposed, accused-appellant threatened with Tamancha. Accused-appellant dragged her from Jhankar to a lonely place in forest at the distance of half kilometer, beat her and snatched her ear-ring of gold, silvered Payal (todiya) and Rs. 5000/- cash. He dropped her on the earth and raped her. Accused ran away after committing rape from the spot. Somehow, she went to village Rahiya and narrated the entire story to her niece. During the incident, she sustained injuries. The rape incident occurred at 4:30 pm. She lodged First Information Report (for short ‘FIR’) in the Police Station concerned. FIR got registered on the written tahrir of prosecutrix as Case Crime No. 3019 of 2014, under Sections 376, 324, 392 IPC, Police Station Kotwali Orai, District Jalaun
3. After investigation, charge sheet against the accused- appellant has been submitted by Investigating Officer under Sections 376, 392, 324, 411 IPC and Section 3(2)(v) of SCST Act.
4. Trial Court framed the charges under Sections 392, 324, 376, 411and Section 3(2)(v) of SCST Act against the accused-appellant, to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined as many as seven witnesses, out of whom, PW-1 prosecutrix and PW-2 Ram Jiwan are witnesses of fact. Rest others PW-3 Dr. Sunita Banodha, PW-4 Bansh Raj Singh, Additional SP, PW-5 Constable Mahesh Chand and PW-6 SI Sobaran Singh and PW-7 Dr. SK Pandey are formal witnesses in the present case.
6. In Statement under Section 313 Cr.P.C., recorded by Trial Court, accused-appellant denied prosecution story in toto. Entire story is said to be wrong, he claimed false implication.
7. Trial Court, after examining the entire evidence on record, found accused guilty and sentenced him, as stated above.
8. Aggrieved with the judgement and order dated 14.11.2017 present appeal has been filed.
9. I have heard Sri K.K. Tripathi, holding brief of Sri Sushil Kumar, learned counsel for appellant, learned AGA for State at length and perused the materials available on record.
10. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, Apex Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. 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 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.
11. PW-1 prosecutrix deposed that at the time of incident, at about 12:00 O’clock, she was going to her Sasural by tempo, in which, two unknown persons and two ladies were also sitting. Accused Ram Bhuwan Yadav also sat in the Tempo. Near Rahiya Factory, accused-appellant forcibly took her off from Tempo. When Tempo driver objected him, accused threatened him with Katta (Tamancha). Accused-appellant took her from Jhankar towards forest. While taking her to forest, he pressed her mouth by one hand and caught her hair (Chutia) by other hand. Accused-appellant beat and snatched her ear-ring of gold, silvered payal (todiaya), Rs. 5,000/- cash, raped her and ran away from the spot. Victim (she) narrated the entire story to Mamta and Shiv Singh. Tehrir of incident was scribed by Shiv Singh on her dictation,
12. PW-2 is the husband of prosecutrix, who supported the prosecution case in his statement but he was not eye witness, therefore, his statement need not detailed scrutiny.
13. PW-1 is prosecutrix and informant of the present case. She was cross-examined by defence but nothing has been brought on record so as to disbelieve her testimonial statement. Although there is some minor contradictions occurred in her statement but they are not fatal to prosecution case. It is well settled principles that after a lapse of time, minor omissions and contradictions are bound to occur.
14. In so far as discrepancies, variation and contradiction in the prosecution case are concerned, Court has analysed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case.
15. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, the Apex Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
16. In Sachin Kumar Singhraha v. State of Madhya Pradesh, 2019 (8) SCC 371, Hon'ble Supreme Court has observed that the Court will have to evaluate the evidence before it keeping in mind the rustic nature of the depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.
17. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to in the case of Smt. Shamim v. State of (NCT of Delhi), 2018 (10) SCC 509.
18. PW-3 Dr. Sunita Banodia, is the doctor who conducted the medical examination of victim on 20.8.2014 at about 9:00 pm. She deposed that she was posted in the Government hospital. She conducted internal and external medical examination of victim. She medically examined the prosecutrix and found that victim was full blown lady, her cloth were blood stained, she did not take bath after the incident. She found sign of injuries on her face, knee, hand and neck. For her medical examination of injury, she referred victim to District Hospital Orai. She took Vaginal Smear and sent it for examination of spermatozoa.
19. PW-7 Dr. AK Pandey deposed that on 20.8.2014, at about 90:20 pm, he was on emergency duty and conducted medical examination of victim and found following injuries on her person :-
i. Lacerated wound 3x0.5 cm on lower lip muscle deep red fresh.
ii. Lacerated wound 3.05 cm on index finger of left had red fresh.
iii. Multiple nail mash around neck size in deep red fresh.
iv. Two abrasion right knee size 4 cm x 0.1 cm red colour.
20. PW-4 and PW-6 are the investigator of the case. PW- 5 constable Mahesh Chand was posted as Head Mohrir in the district Kotwali at Orai. On 20.8.2014, he registered the FIR on the basis of Tehrir of prosecutrix and entry of case was made in general diary. All the formal witnesses withstood a lengthy cross examination from the side of accused-appellant but nothing has been brought on record so as to disbelieve his testimonial statement.
21. In the present case, only prosecutrix is sole witness, who could throw light over the prosecution case. PW-3 and PW-7 are the doctors examining the prosecutrix. Dr. PW-3 found her cloth with blood-stained and Dr. PW-7 found injuries on body and medical report supported the version of the prosecutrix. All the injuries found on person of prosecutrix may occur while protesting the accused- appellant at the time of rape. Thus victim does not appear to be a consenting party.
22. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, I see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained.
23. After the entire evidence on record, I find that trial Court rightly convicted the accused-appellant under the aforesaid sections on proper appreciation of evidence. I have no reason to take a different view than that of trial court.
24. In view of above discussion, appeal lacks merit and it is accordingly liable to be dismissed.
25. So far as sentence is concerned, it is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which, it was executed or committed. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual but also against society to which criminal and victim belong.
26. Keeping in view the nature of allegation, applying the principles laid down in the different judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it is committed. I, partly allow the appeal and modify the impugned order of sentence in the following manner :-
(i) Conviction of accused-appellant under Sections 376, 324, 392 IPC is confirmed and maintained.
(ii) Sentence of accused-appellant under Section 376 IPC is modified to the extent that he shall undergo for a period of eight years rigorous imprisonment with fine as awarded by the trial court with default stipulation.
(iii) Sentence in other sections shall remain unaffected.
(iv) Accused-appellant shall be entitled to the benefit of Section 428 Cr.P.C.
27. Appeal is disposed of with above terms.
28. Certify the judgement along with the lower court record to the court concerned for compliance.
Order Date :- 21.12.2021 Akram