Rajiv Prajapati (In Jail) vs State of U.P.

Vinod Prasad, J.—Appellant Rajiv has challenged his conviction and sentence u/s 376 511 IPC for five years R.I. with fine of Rs. 5000/- and in default of payment of fine to further under go six months imprisonment and six months R.I. u/s 506 IPC. with further direction that both the sentences shall run concurrently and the period of imprisonment already spent in Jail shall be reckoned as period of sentence awarded by the impugned judgment and order dated 19.9.2005 passed by Additional Sessions Judge/Special Judge SC ST Act, Farrukhabad in Special S.T. No. 30 of 2004 State v. Rajiv.

Prosecution allegations against the appellant are that the informant Sabsukh Dhobi is r/o village Gadanpur Deorajpur, P.S. Kamalganj, district Farrukhabad. Her daughter (victim) aged about 13 years had gone to attend the call of nature towards south of his field on 24.2.2004 at 7 P.M. when the appellant pounced upon her and alter pulling her in the wheat field raped her. Victim''s cry for help was stopped at gunpoint but her subsequent shrieks attracted Smt. Ram Shri wife of Ram Autar and on her asking inquiry appellant took to his heels. Ram Shri cried for help which attracted Malkhan (P.W. 4). Both the aforesaid witnesses had seen the appellant in the torchlight and had chased him in vain. Informant got the FIR scribed through Rakesh Kumar Diwakar and lodged it at P.S. Kamalganj, district Farrukhabad on 25.2.2004 at 4.30 P.M. covering a distance of 3 kms. Constable 509 Sundar Lal (P.W. 6) on the basis of Tahrir Fxt. Ka 1 registered the chik FIR Ext. Ka 6 as Crime No. 116 of 2004 for offences u/s 376/506 IPC and Section 3(1)(12) of SC/ST Act and G.D. entry as Ext. Ka 7. Investigation into the crime was entrusted to Pratap Singh Co. P.W. 7 who copied the FIR, G.D. entry and then recorded the statement of the Head Constable. He prepared the site plan Ext. Ka 8 and conducted the spot inspection. He also recorded the statements of various witnesses and copied the medical examination report of the victim. He also took in possession the cloths of the victim, which were stained with blood and semen. He also took in possession the cloths of the appellant and prepared its recovery memo as Ex. Ka 9 with material Ex. 2 to 6. He thereafter recorded the statements of the victim and those of other witnesses and proved Ex. Ka 10 the recovery memo of victim''s cloths and the cloths as material Ext 7 to 9. After completing the investigation he submitted charge sheet against the appellant or 12.3.2004 as Ex. Ka 12. He dispatched the cloths of the victim and accused appellant for chemical examination to Central Forensic Science Laboratory Lucknow on 6.4.2004 whose report dated 7.5.2004 is Ext Ka 13 which indicated that human blood was found on the cloths and that spermatozoa and semen was found on the under wear of the appellant.

Dr. Neelam Rani of Ram Manohar Lohia Hospital Farrukhabad P.W. 5 conducted the medical examination of the victim on 26.2.2004 at12.45 P.M. who was brought to her by a lady constable Indra Devi. From her physical and internal examination she did not find any mark of injury and her hymen was found to be intact. Vagina was admitting only a small finger. Doctor also prepared a slide of vaginal smear for pathological examination for knowing the presence of spermatozoa. She also advised for X-Ray of the wrist and elbow joint for determining the age of the victim. She he d proved her medical examination report as Ex. Ka 2. She further proved X-Ray plate X-ray report as material Ext. 1 and Ext. Ka 3. She also proved pathological report Ext. Ka 4; which indicated absence of spermatozoa in vaginal smear. In the estimation of the doctor based on Ext. Ka 5, victim was about 14 years of age.

Appellant was summoned and his case was committed to the court of Sessions for trial. On 19.8.2004, Special Judge SC/ST Act Farrukhabad charged him for the offences u/s 376 506 IPC and Section 3(2)(5) SC/ST Act, which were denied by the appellant who claimed to be tried.

In the trial, prosecution examined in all seven witnesses to prove he charge against the appellant. Sabsukh (informant) father of the victim P.W. 1, victim Seema P.W. 2, Ram Shri (eye witness) P.W. 3, Malkhan (eye witness) P.W. 4 were the witnesses of fact. Dr. Neelam Rani P.W. 5, Sundar Lal Head Constable (who had prepared chik FIR and G.D.) P.W. 6 and Pratap Singh, CO. (Investigating Officer of the case) P.W. 7 were the formal witnesses.

In his examination u/s 313 Cr.P.C. recorded on 9.8.2005, the appellant denied the incriminating circumstances appearing against him in the evidence and took the defence of false implication with further plea that he had a Grocery Shop in village and informant Sabsukh had taken grocery on credit to the tune of Rs. 3000/- and for not paying the credited amount, he has been falsely implicated in the offence in connivance with the police. The appellant however, did not lead any defence evidence.

Special Judge, (SC/ST Act)/Additional Sessions Judge Farrukhabad, finding the case of the prosecution proved to the hilt, convicted and sentenced the appellant vide his impugned judgment and order dated 19.9.2005 as has been mentioned above. Hence this appeal.

In the trial P.W. 1 deposed that the victim was his daughter and was aged about 13 years and on the date and time of the incident when she was returning after attending the call of nature then near the wheat field of Genda Lal, the appellant pounced upon and committed rape on her. He also threatened her by his country made pistol not to raise any alarm but his daughter shrieked, which attracted Ram Shri (P.W. 3) w/o Ram Autar Dhobi, who flashed her torch and inquired the identity on which the appellant left the victim and.ran away. Ram Shri P.W. 3 also yelled out for help, which attracted Malkhan P.W. 4 to the spot. Witness Ram Shri brought the victim to her house. Because of fear informant did not lodge the FIR in the night itself and next day in the morning he got his FIR registered after getting it scribed through Rakesh Kumar, which he has proved as Ex. Ka 1. He had further deposed that his daughter was medically examined in Government Hospital, Fatehgarh and he belonged to Scheduled cast being Dhobi where as the accused was a potter (Kumhara).

In his cross-examination he testified that P.W. 4 is his real cousin brother and P.W. 3 is the resident of his locality. He further stated that there is no bathroom in his house. He was subjected to searching cross-examination on topography of his house and locality and he had deposed that the crime was committed in the field of Genda Lal. He had further deposed that when victim had gone to attend the call of nature he was not present at his house. After the incident his son had called him and after reaching his house he was informed about the incident by the victim who was bleeding and her Salwar was soaked with blood. He further deposed that accompanied by the victim he had gone to the police station to lodge the report the next day because of fear and at the police station victim''s cloths were taken into possession. He further testified that his thumb impressions were taken on the papers prepared at the police station. He had denied the suggestion that his report was not taken down in the morning nor cloths of the victim were taken in possession at that time. He had also stated that the CO. who was the investigating Officer of the crime had reached at the police station and had sent the victim for medical examination alongwith a lady constable and had conducted spot inspection at his pointing out and from the place of the incident he had collected blood stained and plain earth and thereafter recorded his statement and statement of witnesses. He had admitted that the appellant had a grocery shop in the village and he used to give articles on credit as well but denied credit of Rs. 3000/-on him. He also denied the suggestion that the victim was never raped and for the purpose of getting Rs. 25,000/- from the Government he has falsely implicated the appellant in this case by leveling false charges.

Victim P.W. 2 in her deposition before the court narrated the prosecution story and stated that as soon as she proceeded for her house after easing herself, appellant came there and endeavoured to entice her which she refused and when she proceeded towards her house appellant caught hold of her from her breast and dragged her in the wheat field and committed rape on her at gun point. She further evidenced that on her shrieks her aunt came to the spot alongwith torch on which appellant took to his heels. Smt. Ram Shri and Malkhan had brought her to her house. She further deposed that she was bleeding from her private part, which blood v as soaked in her Salwar. Next day in the morning her father took her to the police station where he lodged the FIR. She also stated that she had narrated the whole incident to the CO. at the police station itself.

In her cross-examination she had stated that she had gone all alone to attend the call of nature wearing Salwar Kurta and under wear. At the time of the incident moonlight was present and when she was dragged did not receive any injury on her breast because she was wearing thick cloths. She had reiterated the factum of rape as well as oozing out of blood from her private part, which had dropped at the place of the incident as well. When she was brought to the house by the witnesses then the informant was sent for and on that very day informant brought her to the police station. She also deposed that in the night itself C.O. P.W. 7 had recorded her statement and she had narrated the whole incident to him. She had further deposed that their written report was taken but it was registered the next day morning and for the whole night she alongwith her father remained at the police station where her blood stained cloths were taken. She had further deposed that she had been medically examined in the hospital at Fatehgarh with an elongated tear in her private part. She further evidenced that at the time of her medical examination blood had stopped oozing out and her father and a lady police constable had accompanied her to the hospital. The doctor who had examined her had seen her injuries of her private part and legs. She denied he suggestion that she was never subjected to rape. She admitted that the appellant was arrested in the night of the incident itself and had denied that the appellant has been falsely implicated because of credited amount and her cloths were never taken in possession at the time of lodging of the FIR and she had not sustained any injury during the intercourse nor any blood had oozed out.

Smt. Ram Shri P.W. 3 had deposed that at the time and date of the incident as soon as she reached near the field of Genda Lal, she heard the shrieks of a girl and when she flashed her torch, she saw that the appellant was cuddled with the victim and as soon as torch was flashed, he took to his heels. She further stated that the victim was moaning in pain and her under garment and Salwar were stained with blood. On other material aspects of the matter also she had supported the prosecution version in full.

In her cross-examination she had stated that the night of incident was a moon-lit-night and after hearing the shrieks she had reached on the spot after ten minutes and thereafter the appellant had run away alongwith his cloths towards south. She and Malkhan had chased the appellant but he made his escaped good. She had seen the injuries on the private part, breast and legs of the victim and had shown them to the police personals as well. She also stated that the appellant was arrested from his house in the night of the incident itself. She deposed that her torch was not taken in custody by the police personals although she had shown it to them. She further admitted that the appellant used to give the grocery on credit. She had refuted the suggestion that victim had not sustained any injury on her private part nor any other injury as alleged by her and that the appellant had been falsely implicated because of the credited amount and no blood stained earth was recovered from the spot and the victim was never subjected to rape.

Malkhan singh P.W. 4 in his deposition also narrated the same story which was narrated by the proceeding two witnesses. In his cross-examination he had admitted that he is real cousin brother of the informant. From his evidence some omissions and contradictions were put which were denied by him and he deposed that he had shown the Stopped blood on the spot to the police personals who had collected it. He further testified that he had shown his torch to the police personals. The victim was bleeding and her cloths were soaked with blood. He further evidenced that they had gone to the Police Station next in the morning and denied the suggestion that the appellant has been falsely implicated.

Dr. Neelam Rani P.W. 5 had proved the medical examination report of the victim and had stated same facts, which are mentioned earlier in this judgment. In her cross-examination she had stated that the victim had no injury either on her breast or on her legs nor her vagina had laceration. She further stated that no blood was oozing out from her vagina and she had examined the victim on 26.2.2004. She further stated that she had prepared her supplementary report on 11.3.2004 at the request of a letter of the I.O. She further stated that she could not give any definite opinion whether the victim was subjected to rape or not but disposed that because the hymen was intact therefore, full penetration had not been done. She further evidenced that the spermatozoa were not present in the vaginal smear and cloths of the victim were not taken in possession by her.

Constable 509 Sundar Lal P.W. 6 proved the chik FIR and the GD entry and deposed that the informant had not come to the police station in the night to lodge of the report but had reached the police station on he next day in evening at 4 P.M. He further deposed that when the informant had come to lodge the FIR victim was also with him who had no physical mark of injury on her body. He further deposed that he had not taken the cloths of victim in possession.

Investigating Officer Pratap Singh C.O. P.W. 7 proved various steps taken by him during the investigation. He further deposed that he had sent the cloths of the victim and appellant for examination to the Central Forensic Science Laboratory Lucknow. In his cross-examination he had stated that he had recorded the statement of the informant on 26.2.2004 and had conducted the spot inspection at his pointing out. He further stated that he had not collected any blood from the spot, as the same was not there at all. He further deposed that he had not taken the torch of the witnesses in custody nor had made any recovery memo because he never thought it important. He further evidenced that he had recorded the statement of the victim on 3.3.2004 and the cause of her belated examination was that she was scared and that day he had also recorded the statements of the two eyewitnesses of fact. He also evidenced that on the day FIR was recorded he had not met the Informant nor he remembered that the victim was sent for her medical examination in his presence. He had proved some contradictions and omissions in the statement of the witnesses. He also admitted that he had not recorded the statement of Doctor, who had examined the victim nor he had questioned her regarding the rape being committed on victim or not. He however, denied the suggestion that he had completed the investigation in one day itself.

In this appeal I have heard Sri Akhilesh Singh Amicus curie and the learned AGA in opposition and have gone through the entire evidence on record.

Sri Akhilesh Singh learned Amicus Curae in support of this appeal intended that the first informant is not an eye witness of the incident and so far as the evidence of the victim is concerned, it is wholly unreliable and contradicted by medical evidence and therefore cannot be believed. He further submitted that so far as P.W. 3 and P.W. 4 are concerned, they are also wholly unreliable interested and inimical witnesses. He further submitted that they are related with the informant and belong to the same caste. He further argued that evidence of these two eyewitnesses Smt. Ram Shri and Malkhan is also contradicted by medical evidence. He contended that victim did not have any mark of injury and according to the doctor no rape was committed on her. He further submitted ilia1 FIR is delayed and investigation is tainted and looked up and all the evidence taken cumulatively do not inspire any confidence and therefore, the appellant should be acquitted and the appeal should be allowed. He further submitted that though the appellant was charged u/s 376 IPC but his conviction has been recorded u/s 376/511/506 IPC and he has been acquitted for the offences u/s 3(2)(5) SC/ST Act, which by itself indicates that the prosecution version of rape being committed on victim is absolutely false. He in the last submitted that if on the merit this court does not find favour with the contention of the appellant, then the appellant be sentenced to the period of imprisonment already under gone as he is in Jail since 26.2.2004 more than two years and the sentence which has been awarded to him is only five years R.I. with fine of Rs. 5000/-

Learned AGA on the other hand contended that the prosecution evidence of P.W. 2, 3 and 4 are wholly reliable and there was no cause of false implication of the appellant by these witnesses and therefore, the prosecution has successfully established the guilt of the appellant and the appeal lacks merit and deserves to be dismissed. He further submitted that looking the gravity of the offence the sentence should not be reduced any further.

After hearing both the sides and looking into the record it is evident that in this case the appellant was charged with an offence of rape u/s 376 IPC at the time when there was moon light. According to the victim she was dragged in the wheat field catching hold of her from her breast and her chastity was ravished at the gun point because of which she has sustained injuries on her leg and her vagina was lacerated horizontally and the blood had oozed out which was soaked in her under garment and Salwar and was also spread on the ground. The same were she statements of Smt. Ram Shri P.W. 3 and Malkhan P.W. 4. However, Dr. Neelam Rani P.W. 5 did not find any injury on her private part nor she found any injury on her legs. The evidence of this doctor therefore is in direct contradiction with the ocular version given by P.W. 2 to 4. However, a perusal of record indicates that cloths of the victim and that of the accused were taken in possession by the I.O. and it were sent for chemical examination to Forensic Science Laboratory Lucknow, whose report dated 30.4.2004 is on the record as Ex. Ka 13. A perusal of the said report indicates that on the cloths (three cloths of the victim Salwar, Kurta and Chhaddi) and lour cloths of the accused (Shirt, T-shirt, underwear and track pajama) human blood were found. The said report also indicated that on the underwear of the appellant, semen and spermatozoa were also found. This fact clearly proves that some blood definitely oozed out and had stained the cloths of the victim as well as accused and that sexual act was definitely performed.

In view of the report of the Forensic Science Laboratory Lucknow, I am of view that the evidence of Dr. Neelam Rani P.W. 5 that the victim had not sustained any injury cannot be accepted. The defence has failed to give any explanation as to how and under what circumstances blood, semen and spermatozoa were found on the cloths of the appellant. This goes in favour of the prosecution.

From the evidence it also transpires that there was no reason for false implication of the appellant as the appellant has not been able to establish that informant had taken any grocery on credit from his shop. No paper etc. has been proved by the appellant for the said purpose. More over it does not stand to reason that for not paying a credit amount of Rs. 3000- the informant will put most blasphemous allegation on his own unmarried daughter aged about 13 years to ruin her whole life. The defence of the accused seems to be wholly codswallop and is wholly misplaced.

So far as the delay in lodging of the FIR etc are concerned, in my opinion the evidence of the witnesses are cogent, reliable and acceptable and cannot be thrown over board. In his defence also the accused has not stated that he was not arrested in the night which shows his complicity in the crime.

The evidence of P.W. 2, 3 and 4, as has been discussed above, does not indicate anything un credit worthy on the basis of which we can be said that they are not wholly reliable witnesses. No doubt the trial court had come to the conclusion that only an attempt to rape was made on the victim and no rape as such was committed but that fact does not dent prosecution version at all as the presence of blood, semen and spermatozoa clearly established that sexual act of intercourse was definitely performed. Thus the appeal lacks merit on facts of the case.

Coming to the question of sentence, I find that at the time of the incident the victim was aged about 13 years and was a minor. The appellant at the Lime of the incident was aged about 23 years of age. There was no reason for the victim to falsely implicate him. She had been subjected to the blemish and slur of her life by the appellant and therefore, the sentence of five years imprisonment with fine of Rs. 5000 does not call for any interference.

This appeal lacks merits and is hereby dismissed.

Copy of this order be certified to the trial court.