1. Sri Rehan Ahmad Siddiqui, Advocate was appointed as amicus-curiae to argue the appeal on behalf of the appellant, who was unable to engage counsel of his choice as is evident from the order dated 2.4.2015 passed by this Court.
2. The present appeal has been preferred by the sole appellant from jail against the judgment and order dated 10.2.2012 passed by Additional Session Judge, Court No.6, Sitapur in Special Session Trial No. 946 of 2010 whereby the appellant has been convicted for the offence punishable under Section 376(2)(f) I.P.C. and sentenced to undergo ten years rigorous imprisonment with a fine of Rs. 5,000/- and default of payment he shall undergo further 6 months rigorous imprisonment.
3. The brief facts of the case are that the first information report of the present case was lodged by P.W. 1 Gaya Baksh Singh on 23.7.2009 at 9:40 a.m. with an allegation that on 21.7.2009, he along with his wife had gone to see a fair on the day of Amawasya leaving behind his minor daughter aged about 7 years at his house along with his servant Siya Ram and when he returned home on 22.7.2009, his daughter was crying and on asking she told him that the accused-appellant Siya Ram has sexually assaulted her and when he saw her underwear blood was found on it and also on her private parts. He took his daughter to the concerned police station for lodging of the F.I.R. and on the basis of the report of the informant, the F.I.R. was registered at police station Ramkot, District Sitapur as Case Crime No. 879 of 2009, under Section 376 I.P.C.
4. In pursuance of the said F.I.R., investigation was conducted and charge sheet was submitted against the accused-appellant for the said offence in the competent court on 11.8.2009, thereafter, the case was committed to the Court of Session for trial on 28.9.2010. The trial court framed charge against the accused-appellant on 8.11.2010 under Section 376(2)(f) I.P.C., who denied the charge and claimed trial.
5. The prosecution in support of its case examined six prosecution witnesses, P.W. 1 Gaya Baksh Singh, P.W. 2 victim, P.W. 3 Constable 359 Gokul Chandra Tiwari, P.W. 4 Dr. Suvidha Singh, P.W. 5 D.S. Kapoor and P.W. 6 Sub Inspector Yaduveer Singh.
6. The prosecution has also filed documents in support of its case i.e. written report Ex. Ka-1, recovery memo of underwear Ex. Ka-2, F.I. R. Ex. Ka-3, Copy of G.D. Ex. Ka-4, medical report Ex. Ka-5, Supplementary report Ex. Ka-6, X-ray Ex. Ka-7, site plan of place of occurrence Ex. Ka-8, charge sheet Ex. Ka.-9 and material Exhibits X-ray plate Ex. Ka-1, polythene bag in which underwear was kept Ex. Ka-2 and underwear Ex. Ka-3.
7. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. in which he has denied the prosecution case and has submitted that P.W. 1 and P.W. 2 the prosecutrix have falsely deposed against him. He further submitted that P.W. 2 the prosecutrix under the influence of her father has given false evidence on the tutoring of her parents falsely implicating the appellant. He further stated that he used to work as a servant of the informant and there was some dispute regarding the payment of his salary which was outstanding and on demanding the same he was falsely implicated in the present case. He stated that the informant was a rich and influential person, who with the help of the police has implicated him as he is a poor person.
8. P.W. 1 Gaya Baksh Singh, the informant of the case in his evidence before the trial court has stated that on 21.7.2009, he had gone along with his wife in a fair on the day of Amawashya and left his daughter alone in the house along with his servant Siya Ram. When they returned on 22.7.2009 at 9:00 p.m. his daughter informed him that the accused-appellant has sexually assaulted her and the informant saw blood stain on her underwear and private parts. At the time of incident the victim was about seven years old and when he saw the condition of her daughter, he was in a state of shock and did not go to the police station to lodge the F.I.R. On 23.9.2009 the informant P.W. 1 had gone to the police station Ramkot and before that he dictated a report to a person, which he had taken to lodge the F.I.R. at the police station Ramkot. He has proved the written report Paper No. 3A/2 on the basis of which he lodged the F.I.R. and he has also proved his signature on the same which has been marked as Ex. Ka-1. After taking his written report, the F.I.R. was registered at police station Ramkot. The police got his daughter medically examined and also get her X-ray done. The police has also taken the blood stained underwear of his daughter and prepared recovery memo which was signed by him as well as his wife. The same has been proved as Ex. Ka-2. The witness stated that the police has recorded the statement of P.W. 2 under Section 161 Cr.P.C. and has prepared the site plan of the place of occurrence.
9. P.W. 2, the prosecutrix has also narrated the incident and stated that at the time of incident she was aged about 7 years and she also identified the accused-appellant in the court. She also deposed that the accused-appellant was the servant at the shop of her father which was of Cement and Sariya. She deposed that on the day of incident, her parents had gone to see a fair and she along with the accused-appellant was alone in the house. She was sleeping on the roof alone where the appellant had come and had pulled her underwear on which she woke up. She started crying on which the appellant closed her mouth and sexually assaulted her. She felt pain and further her private part started bleeding and further she became unconscious. On the next date when her parents had come in the night at 9 to 10 p.m. she narrated about the incident to her parents on gaining conscious, who saw that blood was oozing from her private part and the blood was also found on her underwear. Her parents had taken her to the police station on the next day and lodged the F.I.R. Her underwear was also taken by the police. The doctor has medically examined her and also performed X-ray. Her statement under Section 164 Cr.P.C. was also recorded by the Magistrate.
10. P.W. 3 Constable 359 Gokol Chandra Tiwari has stated that he was posted at police station Ramkot District Sitapur on 23.7.2009 and has proved the registration of the F.I.R. at 9.40 a.m. of the present case and proved the same as Ex. Ka. -3 and further endorsement was also made in the G.D. by the head Moharrir Daya Nand Tiwari. The said head Moharrir was also posted at police station Ramkot and he had seen him writing and further identified his signature as he was acquainted with his writing and signature. He has produced the said original G.D. prepared by Head Moharrir Daya Nand Tiwari and proved the same as Ex. Ka. -4.
11. P.W. 4 Dr. Suvidha Singh has also deposed before the trial court that on 23.7.2009 she was posted as Senior consultant in District Woman Hospital, Sitapur and she on the said date at 9.10 p.m. has medically examined the prosecutirx, who brought by lady constable Premsheela Singh of police station Mahila Thana, District Sitapur. She has stated that no external injury was found on the person of the prosecutrix and the secondary sex characteristic was also not present. So far as internal examination of the prosecutrix was concerned she found hymen torn at 3, 6 and 9 'O' clock position, about 1 cm laceration present on post fourchette bleed to touch, vaginal smear was prepared taken by swab stik and sent to pathology for evidence of spermatozoa. She has prepared medical examination report as Ex. Ka-5 and has proved the same under her writing. She further submitted that her thumb impression and identification was also taken which was certified by her.
12. A supplementary report was also prepared by P.W. 4 which was proved as Ex. Ka-6 in which she opined that the injuries of her private part the possibility of sexual assault cannot be ruled out.
13. P.W. 5 Dr. D.S. Kapoor, who was posted as Senior consultant at District Hospital, Sitapur on 24.7.2009 has stated that he has performed the X-ray of the prosecutrix, who was brought by lady constable Premsheela Singh, Mahila Thana, Sitapur, who also identified her and as per the X-ray of the prosecutrix, he has opined that the age of the prosecutrix is between 9 to 12 years. The X-ray report Ex. Ka-7 has been proved by him and his writing and signature.
14. P.W. 6 S.I. Yaduveer Singh has stated that in his evidence before the trial court that on 23.7.2009 he was posted as Sub Inspector at police station Ramkot and on the basis of the same he was entrusted with the investigation of the present case and he has sent the prosecutrix for medical examination along with lady constable to District Hospital Sitapur. He had recorded the statement of the prosecutrix and her parents under Section 161 Cr.P.C. and further he has taken the underwear of the prosecutrix for which a recovery memo was prepared by him. He had also got the recovery memo signed by the parents of the prosecutrix and proved the same as Ex. Ka-2. He has also prepared the site plan of the occurrence and proved the same as Ex. Ka-8. He has arrested the accused-appellant, who was fleeing from his house in the morning at 4.10 a.m. on coming to know that the police has come to arrest him. He also recorded the statement of the accused and submitted charge sheet against the accused under Section 376 I.P.C. and proved the same as Ex. Ka-9.
15. Heard Sri Rehan Ahmad Siddiqui, Advocate amicus-curiae for the appellant and Sri Shiv Nath Tilhari, learned AGA for the State and perused the record.
16. It has been argued by learned counsel for the appellant that the F.I.R. of the incident was lodged against the appellant after gross delay which raises suspicion about the prosecution case. He further submitted that it is highly improbable and beyond imagination that for 36 hours, the informant and his wife would leave his minor daughter, who was aged about 7 years in the custody of his servant. He further submitted that there has been contradiction in the statement of the prosecutrix recorded under Section 164 Cr.P.C. and the trial as compared to the statement of her parents which further goes to show that the prosecution story appears to be doubtful. He vehemently argued that P.W. 4 Dr. Suvidha Singh in her opinion has not found any evidence of rape and the injuries which has been sustained by the prosecutrix was not on the night of the incident but its possibility was on the next date as duration of the injuries was 24 hours old. He next pointed out that the mother of the prosecutrix, who was material witness has been withhold by the prosecution and she was not produced before the trial court for which adverse inference be drawn against the prosecution. He further argued that the doctor P.W. 4 has appeared before the trial court in his cross examination has also ruled out penetration in private part of the prosecutrix. Thus, on the said grounds, the judgement and order passed by the trial court convicting the appellant be set aside and the appellant be acquitted.
17. Per contra learned AGA on the other hand has vehemently opposed the arguments of learned counsel for the appellant and submitted that the prosecutrix is minor girl aged about 7 years as as per F.I.R. as well as per medical report she was about 9 to 12 years. There is categorical statement of prosecutrix P.W. 2 that it was the appellant, who had sexually assaulted her and further she sustained injuries on her private part which also found to be bleeding and blood was also found on her underwear. He submitted that the trial court has rightly convicted the appellant and the judgement of the trial court be upheld and appeal be dismissed.
18. Considering the submissions advanced by learned counsel for the parties.
19. It transpires from the evidence on record that admittedly, the prosecutrix is a minor girl as per F.I.R. as well as from supplementary report. She was left by her parents in her house, who had gone in a fair under the care and custody of the accused-appellant, who was servant in the shop of informant. While prosecutrix was sleeping in her house, the appellant sexually assaulted her. After the parents of the prosecutrix had returned she informed them about the incident and narrated it. The evidence led by the prosecution particularly P.W. 2 the prosecutrix corroborates her medical reports. P.W. 4 Dr. Suvidha Singh in her statement before the trial court has stated that the injuries were found on the private part of the prosecutrix in which blood was also coming out. The Investigation Officer also recovered the underwear of the prosecutrix on which the blood was also found.
20. Thus, the prosecution case is corroborated by the evidence of P.W. 1 and P.W. 2 coupled with the medical report of the prosecutrix which has been proved by P.W. 4 Dr. Suvidha Singh and P.W. 5. Dr. D.S. Kapoor. The contentions which has been raised by the learned counsel for the appellant has been well considered by the trial court which has rightly rejected the same after meeting them with the evidence of P.W. 1 and P.W. 2 and the medical evidence of the prosecutrix which is proved by the evidence of formal witnesses P.W. 4 and P.W. 5. Moreover, the appellant was a man of trust of the informant as he was working as servant in his shop and his father also used to work as servant with the informant which is evident from the evidence of P.W. 1 Gaya Baksh Singh. Due to such faith and confidence in the appellant he left his minor daughter with the appellant alone. The said trust and faith which the informant reposed on the appellant, was betrayed by the appellant who committed such a heinous act against his daughter. From the evidence on record it is established that the prosecution has prove its case beyond reasonable doubt against the appellant and the findings of conviction recorded by the trial court is correct one.
21. In my opinion the judgement and order passed by the trial court in convicting the appellant and sentencing under Section 376(2)(f) I.P.C. for 10 years R.I. appears to be appropriate.
22. In view of the above foregoing discussions, the conviction and sentence passed by the trial court against the appellant is hereby upheld. The appellant is already in jail and he shall served out sentence as awarded by the trial court.
23. The appeal lacks merits and is accordingly, dismissed.
24. The Court appreciates the assistance given by Sri Rehan Ahmad Siddiqui as Amicus Curiae who argued the present appeal on behalf of the appellant. He shall be paid fee as per the rules of the Court.
25. The Senior Registrar of this Court is directed to send a certified copy of this order to the District Judge concerned for being forwarded the same to the Jail Superintendent of the concerned jail, where the appellant is confined, for its necessary information.
Order Date :- 6.6.2016 Manoj