Pappu alias Om Narain Pandey vs State of U.P.

Alok K. Singh, J.—Under challenge in this appeal is the judgment and order dated 29.2.2001 passed by Sri Dina Nath, VII Ith Additional Sessions Judge, Faizabad, convicting the Appellant in S.T. No. 565 of 1998 u/s 376, I.P.C. and sentencing him 7 years'' rigorous imprisonment and a fine of Rs. 10,000 in default one year''s additional rigorous imprisonment and further convicting him u/s 323 I.P.C. and sentencing two months'' rigorous imprisonment.

Briefly stated the facts are that on 22.2.1998 at about 1.30 p.m. while the prosecutrix Maiser Jahan (P.W. 1) was carrying sugarcane alognwith her younger brother Taufiq Ali (P.W. 2) the Appellant suddenly grabbed and took her away to a nearby field and after shutting her mouth knocked her down. Thereafter he undressed her and committed rape. Her younger brother aged about 11 years, helplessly kept shouting. Soon thereafter several persons assembled there and the Appellant left the place after threatening them. The prosecutrix came to her house and told about the incident to her mother. Her mother then went to the house of the Appellant to lodge oral protest but there both of them were beaten by the Appellant. The F.I.R. was lodged on the same day at about 4.40 p.m. Her medical examination also took place on the same day at the Primary Health Centre, Gosaiganj, Faizabad. At the time of medical examination she complained of pain in her head, chest, back, lower abdomen and vagina. Thereafter she was referred to Mahila Hospital for gynaecological expert opinion. On the next day, i.e., 23.2.1998 she was examined there. After completion of the investigation a charge-sheet was submitted against the Appellant. The Appellant denied the charges and claimed trial.

In order to prove its case the prosecution produced prosecutrix Maiser Jahan (P.W. 1), her mother Saira Bano (P.W. 2), younger brother Taufiq Ali (P.W. 3), Dr. Satyendra Singh, the then Medical Officer posted at P.H.C. Gosainganj (P.W. 4), Dr. Neeraja Mala, the then doctor posted at District Women Hospital, Faizabad (P.W. 5) and S.I. Arun Kumar Gautam, Investigating Officer (P.W. 6).

In his statement u/s 313, Cr. P.C., the Appellant said that he has been falsely implicated and that the prosecutrix is a lady of loose character and easy virtues. In defence three witnesses, namely Durgesh Kumar (D.W. 1) Mohd. Ayyub (D.W. 2) and Naseer Ahmad (D.W. 3) were produced.

The learned court below found the evidence adduced by the prosecution to be consistent and credible and, therefore, convicted and sentenced the Appellant in the aforesaid manner.

Heard Sri Girish Kumar Pandey learned Counsel for the Appellant and Sushri Suniti Sachan learned Additional Government Advocate and perused the lower court record.

Firstly, it is submitted by the learned Counsel for the Appellant that though in the evidence of the prosecutrix and mother it has come that when both of them went to lodge oral protest at the house of the accused-Appellant they were beaten by legs and fists but no such injuries have been found on their bodies. Though an injury report of mother of the prosecutrix has also been brought on record but it could not be proved. But on the basis of her statement on oath it is duly proved that she was beaten by legs and fists. Similarly from the oral evidence of prosecutrix also it is proved that when she went to lodge oral protest alongwith her mother she was beaten by legs and fists by the Appellant. Her injury report has been proved. However, no apparent injury of alleged beating could be noted. But as would be apparent from the perusal of her injury report, at the time of examination she had made complaint of pain in her entire body including head, chest, back and lower abdomen which is mentioned in her both reports. It is not necessary that some apparent injury should necessarily occur if they were beaten by only legs and fists. Moreover, this part of story has no direct link with the main incident of rape and merely due to absence of injury of marpeet the entire substantive evidence corroborated by child witness (brother) cannot be thrown away or disbelieved. Therefore, this argument has no substance.

The noteworthy feature of this appeal is that though in the cases of rape we seldom find any witness except the prosecutrix herself but fortunately or unfortunately in the present case her younger brother, at that time aged about 11 years, was also a witness who helplessly kept shouting. He cannot be exactly said to be a child witness because he was 11 years of age and by that time sufficient maturity is attained to understand several things. Even if he is taken to be a child witness merely on this ground his evidence cannot be taken lightly. If from perusal of the evidence of a child witness it can be ascertained that he has not been tutored or prompted or that he has not given the evidence like a parrot and rather he understands the sanctity of oath and also able to differentiate between good and bad, then evidence of such a child witness has rather more value because of his golden element of truthfulness and innocence which is often wiped off with growing age. An innocent child having attained 11 years of age is expected to speak more truth in comparison to a grown up person provided he is free from aforesaid elements such as tutoring, prompting etc. In the present case, from the entire tone and tenor of the evidence of this child it does not appear that he has either been tutored or prompted or he is deposing like a parrot. He has successfully answered all the questions in his detailed examination. Therefore, there is no reason to disbelieve his testimony.

Secondly, it is submitted that according to prosecutrix her salwar was taken down by the rapist only upto her knees while according to her brother''s statement her clothes were kept aside. At the time of incident her brother was aged about 11 years and about 13 years at the time of deposition. Being an adolescent such perfect observation cannot be expected from him. Moreover, merely on the basis of such minor inconsistency between the evidence of brother and sister their testimony cannot be thrown in the dust bin which otherwise inspires confidence. Both these witnesses have been cross-examined at length and they have answered satisfactorily each query and have given out each details. Nothing comes out from their evidence to create any shadow of doubt. They have corroborated each other on each and every point of commission of rape. Therefore, I am not impressed with aforesaid argument also.

Thirdly, it is said that though the prosecutrix has clearly stated to have been raped comprehensively but in the medical examination nothing could be found to suggest any sexual assault. It is further urged that any spermatozoa or any injury was also not found on internal part of the prosecutrix. Time and again the Hon''ble Supreme Court has laid down that merely because the doctor could not give any opinion about rape, the entire evidence of prosecutrix which otherwise inspires confidence cannot be disbelieved. Moreover, in case of a married lady as the prosecutrix of this case was, it becomes difficult to give opinion about rape. Normally in cases of rape there is no other witness except the prosecutrix herself but in the present case fortunately or unfortunately her younger brother was also present who has corroborated her testimony. In cases of rape conclusion has to be drawn after taking into consideration the ocular evidence and also the entire surrounding circumstances. The learned court below has discussed in detail the entire evidence on record as also all the facts and circumstances of this case and, thereafter, gave its findings. There does not appear to be any scope to interfere with any of those findings.

Fourthly, the learned Counsel for the Appellant draws the attention of this Court towards the evidence adduced in defence. Durgesh Kumar (D.W. 1) has told about recovery of some clothes belonging to a woman of Muslim community such as burqa and salwar and when nobody claimed those clothes the same were given to some poor person of the village. He further told that after some time the prosecutrix came to him and asked for the clothes but the Appellant rebuked her. The learned Counsel for the Appellant says that either due to this enmity he was falsely implicated or she was a consenting party. I regret in not accepting either of the arguments. Firstly, it is not ascertainable as to what was the relation between D.W. 1 and the Appellant and how the Appellant reached there and what was the occasion for him to have rebuked the prosecutrix. Instead they could have easily told her to take back her clothes from the person to whom the same were given because nobody had claimed those clothes earlier. Any of those clothes have also not been produced in the Court. Moreover, had this defence witness really found those clothes the last course for him was to deposit the same with village Pradhan or at the police station. Further, as has been observed by the learned court below, this story it appears to be an afterthought and otherwise also these clothes were found prior to commission of the rape in question as has been admitted by this witness and, therefore also these clothes have no relevance in the present case. Secondly, on the basis of recovery of these clothes no inference regarding the prosecutrix being a consenting party in the present incident can be drawn and if the Appellant''s side is trying to suggest that she was a lady of easy virtues then also it has no relevance in the crime of rape in question.

The remaining two defence witnesses, namely Mohd. Ayyub (D.W. 2) and Naseer Ahmad (D.W. 3) have also tried to depose that the prosecutrix was of easy virtues and loose character. Even if it is assumed for a moment that she was such a lady, this itself does not give a licence to any body or the Appellant to commit rape upon her. Moreover, the evidence of both these witnesses appear to be very hazy and patently unbelievable. They have referred to some events which took place either much after the incident or much before it. Therefore, the evidence of these defence witnesses is of no help to the Appellant and it does not affect the credence of ocular evidence adduced by the prosecution in this case.

Learned Counsel for the Appellant also placed reliance on the following two cases:

(i)Sadashiv Ramrao Hadbe v. State of Maharashtra and Anr. 2007 (1) JIC 621. In this case at the time of occurrence many other patients were present in clinic and no injury was found on the private part of the prosecutrix. It was also found that she did neither make any noise nor try to get out of the room though she was a well bodied young girl. The evidence and surrounding circumstances also belied any case of rape. Therefore, the Appellant in that case was given the benefit of doubt. But the facts of the present case, as discussed hereinbefore, are quite different and, therefore, this case law has no application in the present case ; and

(ii)Radhu v. State of M.P. 2008 (1) JIC 710 . In this case also it was observed that evidence of the prosecutrix when read as a whole it was found to be full of discrepancies and did not inspire confidence. The gaps in the evidence, several discrepancies in the evidence and other circumstances made it highly improbable and, therefore, the appeal was allowed. The facts of this case law being also different, it also does not help the Appellant.

No other argument is either placed before this Court or comes to its notice from record.

Finally, therefore, this appeal deserves to be and is accordingly dismissed and the conviction and sentence are upheld. The Appellant is on bail. He shall be taken into custody forthwith and sent to jail to serve out the sentence. His sureties shall stand discharged after surrender/arrest of the Appellant.

The lower court record alongwith a copy of this judgment be remitted back to the court concerned at once by the Registrar of this Court for compliance and report.