Bhuggan vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Heard Sri Ashok Kumar Mishra, learned counsel for the appellant, Sri Umesh Verma, learned Additional Government Advocate for the State and perused the material available on record.

The instant criminal appeal has been preferred by the appellant-Bhuggan @ Munnu @ Amarjeet Singh challenging the judgment and order dated 22.01.2011 passed by learned Additional Sessions Judge/F.T.C. Court No. IInd/Special Judge S.C./S.T. Act, Faizabad, in Sessions Trial No. 29 of 2008, relating to Case Crime No. 128 of 2008, under Sections 376, 324, 504, 506 IPC and Section 3(2)5 Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Raunahi, District Faizabad, whereby the appellant-Bhuggan @ Munnu @ Amarjeet Singh was convicted for the offence under Section 376 IPC read with Section 3(2)5 of S.C./S.T. Act and was sentenced with imprisonment for life and also with fine of Rs. 5,000/- with default of five months'' additional imprisonment and for the offence under Section 324 IPC he was sentenced to undergo rigorous imprisonment for a period of two years and also fine of Rs. 2000/- with default stipulation of two months'' additional imprisonment and for the offence under Section 506(2) IPC he was further sentenced to undergo rigorous imprisonment for a period of three years and also with fine of Rs. 3000/- with default stipulation of three months'' additional imprisonment.

All the sentences were directed to run concurrently.

In brief, the case of the prosecution was that the complainant Ram Jag lodged an FIR at the Police Station Raunahi, District Faizabad on 24.02.2008 at 19:50 hours alleging therein that his minor daughter aged about 12 years (hereinafter referred as victim) had gone to her field alongwith her younger sister. At about 3:00 p.m. when they were coming back to their house with sapling of sugarcane, on the way near the field of Vinay Singh s/o. Raj Karan Singh appellant dragged the victim into Arhar field and after beating her and gagging her mouth with a cloth and on the point of knife committed rape with the victim and also threatened her that in case she tell this incident to anyone then she shall be killed. The victim was a girl belonging to scheduled caste. The complainant who happens to be father of the deceased was a labour on the brick kiln of Satnam Singh situated in Sanjayganj. On the basis of this FIR the case was registered and underwear of the victim was taken into custody. The victim was referred for medical examination which took place on 24.02.2008 at 11:00 p.m. at Women Hospital, Faizabad. For external examination of injuries she was referred to District Hospital. However, she made complaint of teeth bite on left cheek, impression of teeth bite on left cheek was present. In internal examination a small tear was present on 9 O'' clock position, 3 O''clock position and 6 O''clock position. Small laceration was present adjacent to 3 O''clock and 6 O''clock hymen tear. One c.m. long laceration present at 2 O''clock, tear. Slight oozing was present from laceration on touch. No other tear, no injury no bleeding on any part of the genetials and inner thigh were present. Vaginal smear slides were prepared and victim was referred for her X-ray for determination of her age. She was also externally examined on the same day by medical officer District Hospital, Faizabad, and following injuries were reported by the doctor:-

(i) Small purple black contusion present on left cheek. Contusion present in oval shaped, margins obliquely situated size 2.5 c.m. in front of ear lobule. left. Size of contusion was 0.5 c.m. x 0.2 c.m. each, three contusions were present on superio medial aspect of oval shape and two contusions were present on interio lateral aspect of oval shape. Complain of pain on interior aspect of neck and upper part of the chest.

Injury No. 1 was reported to be simple and duration was about three days old and was caused by teeth bite.

After completing the investigation, the charge-sheet was filed against the accused appellant.

The case of the defence was of total denial and his false implication.

In order to prove its case, the prosecution has examined PW-1, Ram Jag, the complainant, PW-2 the victim of this offence, PW-3 Km. Anjali who was accompanying the victim at the time of incident but because of her tender age she was not found fit to depose and her statement was not recorded, PW-4 Dr. Tarannum Raza, who has medically examined the victim, PW-5 Dr. Rajesh Kumar Rai, who has medically examined the external body of the victim, PW-6 Constable Moharrir Madan Singh who has prepared the chik report and G.D. of this case, PW-7 Dy. S.P. Sri S.P. Singh Tomar, the Investigating Officer of this case, PW-8 Ram Mohan Srivastava, Junior Clerk of District Hospital who has proved X-ray report as secondary evidence.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, the trial court convicted the appellant as above. Hence the instant appeal.

Submission of the learned counsel for the appellant was that in this case the FIR was lodged with a considerable delay as the incident of this case is alleged to have taken place on 23.02.2008 at about 3:00 p.m. while the FIR of this case was lodged on the next day at 7:50 p.m. He has also argued that there is no other independent witness of this incident and the evidence of the victim does not stand corroborated by the medical evidence and by the report of the Serologist wherein no spermatozoa was found on the underwear of the victim. From perusal of the cross examination of the victim it appears that no such incident has taken place. He has also argued that the learned trial court has appreciated the evidence considering that the offence has taken place on 24.02.2008 at 3:00 p.m. and therefore, he has observed that the FIR was lodged promptly. There was no delay in the medical examination so the judgment of the learned trial court becomes unsustainable under law.

Learned Additional Government Advocate has submitted that the evidence of the victim was wholly reliable and in such nature of cases neither the delay in the FIR is material nor absence of injury or the absence of spermatozoa in the vaginal smear slide can be said to be of any consequence. It is only the evidence of the victim which, if found wholly reliable, may be made basis for conviction of the appellant. He has argued that in the instant case the victim, who was a minor girl aged about 12 years, has fully supported the case of the prosecution and in the entire cross examination the manner of incident has not been challenged. No question has been put on this point. He has also argued that it is true that the learned trial court has observed in its judgment that the incident has taken place on 24.02.2008 but this by itself would not make any difference because at best the correct date, time and place of the incident would make the FIR of this case delayed and mere delay in the FIR cannot be a ground to discard the entire case of the prosecution.

It is true that the date and time of incident were not mentioned in the FIR submitted by the complainant. It was only during investigation that the date, time and place of incident came into light. In the charge framed against the appellant correct date, time and place of incident was mentioned. So simply because the learned trial court has observed in its judgment that the incident has taken place on 24.02.2008 would by itself not be a ground to discard the entire case of the prosecution. But being the court of first appeal we are obliged to re-assess the evidence on the basis, of the correct date, time and place of incident as alleged by prosecution. The incident is alleged to have taken place on 23.02.2008 at 3:00 p.m. and admittedly the FIR of this case was lodged after a considerable delay of about 28 hours on 24.02.2008 at 19:50 hours. It is a case of rape, therefore, in cases of rape a different view has to be observed regarding such delay. In the facts of the instant case the father of the victim was not present at the time of incident at his home. The victim was a minor girl aged about 12 years so it was not expected from a girl of such a tender age to herself go to the police station to lodge the FIR. In our society the mother of the victim also refrains from taking such decision before consulting her husband. According to the evidence of PW-1 Ram Jag he got the information of this incident on telephone then he came to his village on the next day at about 10:00 a.m. his wife and his daughter told him about this incident. Thereafter he went with the victim to the Police Station Raunahi where he was asked to bring the written report then he came out of the police station got the FIR scribed and after hearing the same he signed it and lodged the FIR. So the complainant after getting the information has taken steps to lodge the FIR.

Law is settled on the point that the entire case of the prosecution cannot be thrown out merely on the basis of delay in FIR, particularly in cases such sexual assault because in such nature of cases family of the victim has to undergo a very long thought process before lodging the FIR because it casts a stigma on the family of the complainant himself though it is very unfortunate. This is the reason that a large number of rape cases remains unreported. It is only after gathering courage to face the reaction of the society the parents of the victim decides to lodge the FIR and his thought process consumes a long time.

Hon''ble Apex Court in the case of State of Himachal Pradesh versus Gian Chandra reported in , 2001 (3) scale page 565 has considered the aspect of delay in F.I.R. in rape cases and has held that in the incidents like rape, more so when perpetrator of the crime happens to be the member of the family or related therewith, involve the honour of the family and therefore there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the Court. A cool thought may precede lodging of the F.I.R.

In the facts of the instant case, the father of the victim was not present at the house, therefore, the family members considered it proper to wait for him when he came back on the next day, the complainant''s side went to lodge the F.I.R. Such conduct of the family to wait for the head of the family before lodging the FIR cannot be said to be unnatural. This view finds support from the judgment of Hon''ble Apex court in the case of Sri Narayan Saha and another v. State of Tripura reported in , (2004) 7 SCC 775 wherein in para 8 Hon''ble Apex Court has observed as under:-

"In India if the prosecutrix happened to be a married person, she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly, does not raise the question that the complaint was false. The reluctance to go to the police is because of society''s attitude towards such women. It casts doubt and shame upon her rather than comfort and sympathy. Therefore, the delay in lodging complaint in such cases does not necessarily indicate that her version is false".

Great emphasis has been led by the learned counsel for the appellant that no injury was found on the person of the victim. As per the prosecution story the victim was dragged by the appellant, holding her hand but no injury was found on her person. It is further submitted that no injury was found on the private parts of the victim, therefore, the absence of injury itself falsify the prosecution story. This argument has also been considered by the trial court and has been rejected rightly.

Hon''ble Apex court in the case of Utpal Das and another versus State of West Bengal reported in , (2010) 6 SCC page 493 in para 22 has observed that "We are required to note that victim Sita Rani Jha is a married grown-up lady and blessed with two children and in such circumstances absences of injuries on her private parts is not of much significant. The mere fact that no injury was found on private parts of her body cannot be the ground to hold that she was not subjected to any sexual assault. The entire prosecution story cannot be disbelieved based on that singular assertion of the learned counsel".

Hon''ble Apex Court in the case of Dastagir Sab and another versus State of Karnataka reported in , 2004 (3) SCC page 106 in para 26 has held that the injury on the body of the persons of the victim is not a sine-qua-non to prove a charge of rape. Absence of injury having regard to overwhelming ocular evidence cannot, thus, be the sole assertion for coming to conclusion that no such offence had taken place.

In the facts of the instant case hymen was found torn at three places and teeth bite mark was also found on her cheek which corroborated her woeful tale. There was also a fresh laceration in her private part. So in this case victim had suffered injuries which are suggestive of sexual violence with her.

It is further submitted that no spermatozoa was found in pathological report.

This point has also been considered by the Hon''ble Apex court in the case of State of Karnataka versus Muniyappa and others reported in 1994 (5) SCC page 728 in para 4 (vi) as under:-

"It was never elicited from the prosecutrix as to whether the two persons who committed rape on her had reached orgasm emitting semen in her private parts. No presumption can be made that penetration of penis in the private parts of a rape victim must necessarily lead to the discovery of spermatozoa. It is a question of detail and has to be put to test by cross-examination. Otherwise also there may be various other factors which may negative the presence of spermatozoa such as faulty taking of the smear, its preservation, quality of semen etc. The absence of spermatozoa prima facie could not be allowed to tell against the version of the prosecutrix".

It is true that in the facts of this case the victim has stated that discharge of the appellant fell on her underwear (Chaddi) and also on her thighs. She has nowhere stated that the appellant ejaculated in side her private part. So in this background, the absence of spermatozoa in the vaginal smear slides cannot be a ground to discard her testimony. In the facts of this case it was not expected from the victim, who was girl of tender age and was under fear, to note correctly whether the said discharge fell on her underwear or not. So even if she has stated in her examination that it fell on her underwear even then it will not adversely affect the case of the prosecution. No spermatozoa was found in the Forensic Science Laboratory report on the underwear of the victim even then it will not adversely affect the case of the prosecution.

Next submission of the learned counsel for the appellant was that in the instant case the victim PW-2 is the sole witness of this incident and there is no independent witness of this incident. Perusal of the site plan prepared during investigation shows that no residential building was shown near the place of incident. Submission of the learned counsel for the appellant was that the other persons were also working in the adjoining fields so if the victim would have cried then the same would have drawn the attention of such persons towards the incident. Law is settled on the point that in such nature of sexual assault the evidence of the victim is of the prime importance and conviction can be recorded only on the sole evidence of the complainant provided the same is found to be wholly reliable.

Hon''ble the Apex Court in the case of Mohd. Iqbal and Another V. State of Jharkhand reported in , (2013) 14 SCC 481 has observed in paras Nos. 17 and 18 as under:-

"17. There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.

In Narender Kumar v. State (NCT of Delhi) reported in (2010) 8 SCC 191, this Court has observed that even if a woman is of easy virtues or use to sexual intercourse, it cannot be a licence for any person to commit rape and it further held:

Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.

The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."

Reliance may be placed on this point on the pronouncement of Hon''ble Apex Court in the case of State of Rajasthan Vs. Babu Meena reported in , (2013) 4 SCC 206 has considered this aspect and has observed in para 9 as under:-

"We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and, (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused."

Perusal of the evidence of the victim shows that she in her statement has specifically stated that the rape was committed with her on the point of knife and she has also stated the manner in which the offence was committed with her. She has stated that because of the fear of the appellant she could not make any noise or could raise any alarm because he was also pressing her mouth with his hands. So in such circumstances it cannot be presumed that a girl of such tender age could have offered resistance to the said immoral act of the appellant who at the relevant point of time was aged about 23 years. So keeping in view the age difference between the appellant and the victim it was not possible, keeping in view the circumstances in which the offence was committed, that the victim could have offered any resistance. Virtually it was a case of desperate surrender and it was under fear of life that the victim surrendered to the lust of the appellant. So because of this reason absence of injury on the external part of the body to reflect her resistance cannot be of any help to the appellant. On the contrary, a tooth bite impression on the left cheek of the victim was reported by the doctor and she also made a complain of pain in her upper chest so all these circumstances supports the evidence of the victim.

Law is settled on the point that mere penetration is sufficient to constitute an offence of rape and in the facts of the instant case there were a laceration at 3 places in the hymen and the doctor has also not ruled out the possibility of rape. In medical terms the rape is completed by the complete sexual intercourse followed by ejaculation. While in the legal sense mere penetration is sufficient to constitute an offence of rape. So in the instant case, the offence of rape stands established in the legal perspective because medical evidence corroborates the same.

Perusal of the evidence of the victim shows that she has fully supported the case of the prosecution and she has furnished the manner in which the offence was committed with her. We think that girl of such a tender age can never be tutored to such an extent to give such a reliable version of the incident. Learned counsel for the appellant has placed great emphasis on her statement in her cross-examination and has drawn our attention towards the statements that the appellant had never talked to her prior to the incident. She has stated that on the date of incident she had gone to the school and she came back to her house from school at 2:00 p.m. and thereafter she immediately went to her field. This statement of the victim stands corroborated by the fact that at the time of incident she was in the school uniform. She has stated in her cross examination that the way wherefrom she was coming, the appellant was also coming from the backside and she has stated that the appellant did not ask her to walk by the side of the road. She did not collide either with her or with her sister. She was not given any slap by the appellant. She has stated that the appellant went ahead of his cycle and she cannot tell the distance which he had covered. But at no point of time, there was any cross examination whether any such incident was committed by him. She has nowhere stated that he came from behind and without committing any incident he crossed over her and went away. On the contrary, the suggestion given to this witness was that some quarrel had taken place on the place of occurrence between the appellant and the victim where she was given slaps and adding some other incident his father has lodged a false report. But this suggestion of the appellant does not explain the injuries sustained by the victim on her private part, which stands fully established by the statement of the victim given by her in her examination-in-chief. Thus the date, time and place of occurrence stands established that some quarrel took place between them. The appellant could not furnish any reason as to why he has been falsely implicated in this case by the father of the appellant. It is unbelievable that any father, sparing the real culprit would lodge a false report against any innocent person of his village without any enmity. Therefore, in view of the aforesaid fact situation, we are of the considered view that the evidence of the victim PW-2 falls within the purview of wholly reliable and the learned trial court has not committed any illegality in convicting the appellant. Though learned counsel for the appellant has not argued that the offence under Section 3(2)5 of S.C./S.T. Act is not made out against the appellant but we have ourselves gone through the evidence to hold whether this offence would fall within the purview of Section 3(2)5 of S.C./S.T. Act or not.

It is no where the case of the prosecution that rape was committed because victim was member of scheduled caste or scheduled tribe. At this juncture, it is essential to go through the provision contained in Section 3(2)(5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989 which reads as under:-

"3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe-

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine".

For commission of the offence read with 3(2)(5) SC/ST Act, it would be appropriate to have a glance over pronouncement of Hon''ble Apex Court in the case of Dinesh @ Buddha v. State of Rajasthan, , AIR 2006 SC 1267. The observation of the Hon''ble Apex Court are reproduced here below:

"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), IPC does not per se become life sentence."

Hon''ble Supreme Court in Ramdas and Ors. v. State of Maharashtra, , (2007) 2 SCC 170 has held as under:

"11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."

From the perusal of above proposition of law, it is clear that for application of Section 3(2)(5) SC/St Act, it is essential that the offence should have committed because the victim belongs to a SC/ST community with the intention to denigrate her position as being the member of the SC/ST community. Nowhere the evidence to this effect has been led that the prosecutrix was victimized because she belonged to the SC/ST community. In absence of such evidence we are of the considered opinion that Section 3(2)(5) SC/ST Act shall not apply in the facts of the instant case.

So keeping in view the aforementioned legal position and the facts of the instant case there is absolutely no allegation that the offence was committed for the reason that the victim was a member of scheduled caste. On the contrary, it was committed by the appellant to satisfy his own lust. So Section 3(2)5 of S.C./S.T. Act cannot be applied. Learned trial court, in the impugned judgment, has convicted the appellant with imprisonment for life with the aid of Section 3(2)5 of S.C./S.T. Act which provides for the minimum sentence of imprisonment for life. Since we have observed that the circumstances of the case does not bring the case within the purview of Section 3(2)5 of S.C./S.T. Act, therefore, next question that emerges for our consideration would be appropriate sentence.

The minimum sentence provided for such an offence of rape with a minor girl of 12 years. However, for the reasons to be recorded in writing the court is empowered to inflict even less than minimum prescribed sentence. On the other hand, the sentence can be extended upto imprisonment for life. So a vast discretion has been given to the court to inflict appropriate sentence. Therefore, the appropriate sentence would depend on the facts and circumstances of each case. In the facts of the instant case, no other external injury on the body of the victim except teeth bite mark was reported by the doctor and the circumstances also does not indicate that the offence was committed in a brutal manner. So in our considered opinion a sentence of 10 years rigorous imprisonment and fine of Rs. 20,000/- would be adequate sentence against the appellant.

We do not find that there was any evidence of commission of offence under Section 324 IPC, therefore, for the said offence appellant deserves to be acquitted. Hence the appellant deserves to be acquitted for the said offence.

Thus, the appeal deserves to be partly allowed and is hereby partly allowed.

Conviction of the appellant under Section 376 IPC read with Section 3(2)5 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act is modified under Section 376 IPC only and sentence of imprisonment for life is hereby reduced to a period of ten years'' rigorous imprisonment and also with fine of Rs. 20,000/- with default stipulation of six months additional imprisonment.

Conviction of the appellant under Section 324 IPC is hereby set aside.

Conviction and sentence awarded by the learned trial court under Section 506(2) IPC is also hereby confirmed. Appellant Bhuggan @ Munnu @ Amarjeet Singh is in custody. The appellant shall serve out his sentence as modified by this Court. All the sentences shall run concurrently.

The period already undergone by the appellant Bhuggan @ Munnu @ Amarjeet Singh in the instant case, shall be set off in accordance with the provision of Section 428 Cr.P.C.

Office is directed to certify this order forthwith to the court concerned and to send back the lower court record to ensure compliance.