Court No. - 77
Reserved on 29.07.2021 Delivered on 26.10.2021
Case :- CRIMINAL APPEAL No. - 1386 of 1988 Appellant :- Ram Sewak And Another Respondent :- State of U.P. Counsel for Appellant :- Siddhartha Shukla,Rajendra Babu Gaur Counsel for Respondent :- A.Ga.
Hon'ble Rajendra Kumar-IV,J.
1. By this criminal appeal, accused-appellants Ram Sewak and Raksh Pal have challenged the judgement and order dated 31.05.1988 passed by IInd Additional Sessions Judge, Shahjahanpur in Session Trial No.409 of 1987, under Section 376 I.P.C., Police Station Kanth, District Shahjahanpur by which accused-appellants have been convicted and sentenced 7 years rigorous imprisonment under Section 376 I.P.C.
2. Briefly stated, on 11.04.1987 at about 9 to 10 p.m., prosecutrix P.W.-2 (name withheld) was alone in the house whereas her parents (Kheoraj complainant and his wife) were harvesting wheat crop in the field. Accused Ram Sewak and Raksh Pal entered in the house of complainant and caught prosecutirix. When prosecutrix shouted, witness P.W.-4 Ram Pal and one Leela came there lightening their torch and challenged the accused. The accused Ram Sewak, who was having tamancha, threatened the witnesses and victim to kill them, if any alarm is raised. Both accused persons, slammed her on the ground forcibly and committed rape upon her on the gun point, in their turn. The witnesses could not scream under the fear of tamancha. Accused persons ran away leaving her in the bad shape and extending threat that if any action is taken, they will kill her. The prosecutrix narrated the entire episode to his father after he came to house. The informant approached the police station but no heed was paid then he moved an application before Inspector Harijan Cell, Shahjahanpur with request to register the case against the accused persons.
3. Upon the written tehrir, Chick F.I.R. Ex.Ka.-3 was registered bearing Case Crime no. 136 of 1987, under Section 376 I.P.C. Entry of case was made by constable clerk in general diary.
4. Investigating Officer, P.W.-6 Hira Singh, undertook the investigation, recorded the statement of victim and witnesses, visited spot, prepared site plan Ex.Ka-7 and completing entire formalities of investigation submitted charge sheet Ex.Ka.-9 against the accused persons.
5. In order to substantiate its case, prosecution examined as many as seven witnesses, out of whom PW-1, P.W. 2 and P.W.-4 are the witnesses of fact and rest are formal witnesses.
6. On closure of prosecution evidence statement of accused-appellants under Section 313 Cr.P.C. was recorded by Court explaining entire evidence and incriminating circumstances against them. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication but he did not proposed to produce any evidence in defence.
7. Trial court, on appreciation of entire evidence on record, found the accused-appellants guilty and convicted and sentenced them as stated above.
8. I have heard Sri R.B. Gaur, learned counsel for the appellant, learned AGA for the State at length and perused the record.
9. Learned counsel for the appellants submits in following manner :-
i. The accused-appellants are innocent and have been falsely implicated on account of village rivalry.
ii. There is no public witness in support of prosecution.
iii. There is no motive to accused- appellants to commit the present crime.
iv. Medical evidence does not go with the prosecution case. As per prosecution, prosecutrix was found habitual to sexual intercourse and no specific opinion in respect of rape has been given by the doctor.
v. There are material contradiction in the testimonial statement so as to disbelieve the statement.
vi. Prosecution story is totally unbelievable and no body can dare to commit rape by any one in the presence of other or witnesses.
10. Per contra, learned AGA opposed the appeal, supported the impugned judgement and submitted that accused persons committed rape upon the prosecutrix on the gun point showing tamancha. They had threatened her that if any action is taken, she will be killed. It is a case of direct evidence, therefore, motive looses its importance. There is nothing on record to show false implication of accused-appellants. Trial court's judgement is based on proper appreciation of evidence and appellants could not show any ground that judgement of trial court is based in perverse manner.
11. Now, I examine the evidence of prosecution.
Since P.W.-1, who happens to be the father of victim / prosecutrix, is not the eye witness of incident. He came to know about the incident on the narration made by prosecutrix herself and he is only the informant who got the F.I.R. registered. Thus, close scrutiny of his statement is not required.
12. P.W.-2 is the victim and prosecutrix. She supported the prosecution case and deposed that on the fateful night at about 9 to 10 p.m., she was alone in the house, her parents and brother had gone to harvest wheat. Accused Ram Sewak and Raksh Pal entered in her house, Ram Sewak was armed with tamancha, he slammed her on the ground and raped her, thereafter Raksh Pal raped her on the gun point. On being shouted by her, witnesses Leela and Ram Pal arrived there with torches, then accused persons ran away leaving her. Accused persons threatened her. She told that there was a spot on peticot that was thrown by her.
13. P.W.-4 Ram Pal, happens to be the eye witness, deposed that he and his father Leela were in his house at the time of incident, when he heard the noise made by prosecutrix, he and Leela arrived to the house of victim with torches and saw that accused Ram Sewak was committing rape upon prosecutrix while accused Raksh Pal was standing there with country made pistol. When they challenged them, accused persons ran away towards north, extending threat of death.
14. Both witnesses, P.W.-2 and P.W.-4 supported the prosecution case showing that accused persons committed rape upon prosecutrix. They withstood lengthy cross-examination but nothing adverse could be brought on record so as to disbelieve their testimonial evidence.
15. Certainly minor contradictions and developments appeared in cross-examination but they are not of such nature so as to disbelieve their statements and they are not so serious and sufficient that accused could be acquitted on that count only. Each and every contradictions or developments appeared in the cross-examination do not affect the root of case.
16. In so far as discrepancies, variations and contradictions in the prosecution case are concerned, I have 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.
17. 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.
18. Prosecutrix was medically examined by P.W.-3 Dr. Neena Kapoor, who deposed that she was posted as E.M.O. in District Hospital, Shahjahanpur on 15.5.1987. On same day, she medically examined the prosecutrix and prepared medical report Ex.Ka.-1. She proved the supplementary report also. As per her radiological age, she (victim) was found 15 years old. It is noteworthy to mention here that incident of this case is of 11.04.1987 i.e. more than one month, before the examination. A considerable time had already been elapsed. Thus, opinion of the doctor about rape has no much importance.
19. P.W.-6 Hira Singh, Investigating Officer conducted the investigation and he deposed that investigation of this case was undertaken by him. He completed the entire formalities and submitted charge sheet against the accused persons. He too was cross-examined at length but nothing could be brought adversely in cross-examination which could render the prosecution doubtful.
20. So far as the argument about public or relative witness is concerned, I am not in agreement with the submissions made by learned counsel for the appellants for the reasons that P.W.-4 is neighbor of prosecutrix, closely known to each other. The submission is thoroughly misconceived. It is now well settled law laid down in Dalip Singh v. State of Punjab, AIR,1953, SC 364. Court has held as under :-
“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”
21. In Dharnidhar v. State of UP (2010) 7 SCC 759, Court has observed as follows :-
“There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim”
22. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-
“11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308).”
23. Deposition of P.W.-2 prosecutrix, P.W.-4 Ram Pal and P.W.-6 Hira Singh establish the prosecution case beyond reasonable doubt against the accused-
appellants. There is nothing on record to hold that trial court passed the impugned judgement in perverse manner.
24. Considering the entire facts and circumstances of the case, manner in which the offence has been committed, entire evidence on record and deposition of witnesses, in my opinion, trial court has rightly appreciated the evidence on record and found the accused-appellants guilty in the offence alleged. I do not see any reason to take a different view than that of trial court.
25. In view of the above, appeal lacks merit and is accordingly, dismissed.
26. The accused-appellants shall surrender forthwith or they shall be taken into custody to serve out the remaining part of their sentence. They shall be entitled to the benefit of Section 428 Cr.P.C.
27. Certify this judgement along with the lower court record to the court concerned through District Judge for information and necessary compliance.
Order Date :- 26.10.2021 Manoj