Ram Prasad vs State of U.P.

Allah Raham, J.—This is an appeal against the judgment and order dated 19.9.2002, passed by Additional Sessions Judge, Hardoi in Sessions Trial No. 594/2001, whereby accused Ram Prasad was found guilty under Sections 366 and 376 IPC and sentenced to seven years'' R.I. u/s 366 IPC and ten years R.I. u/s 376 IPC.

The prosecution story, as it appears from the statement of the victim P.W.2 and the record, is that victim''s father had died. Victim''s mother was residing with the victim''s Nana in her Nanihal. There too, victim''s Nani was alive while Nana had expired. Accused Ram Prasad is the brother-in-law (Sala) of victim''s maternal uncle and was known to the victim from before. He was on visiting terms with the victim. On 13.4.2001 at about 12 O'' Clock (mid day), accused Ram Prasad came to victim''s Nanihal. He enticed the victim to go with him on the promise of giving her good clothes and other valuable articles. The victim fell to the allurement and went with accused Ram Prasad. On the date of occurrence, the victim''s mother had gone to her own Nanihal; only the victim and her Nani were at home. Accused Ram Prasad took the victim to Chittarkhera on a bicycle. From Chittarkhera, she was taken to village Bharawan in a bus by the accused. She was kept confined in the accused''s house for two days, where accused committed rape upon her. From there, accused took her to another village, where she was again raped by the accused. On 17.4.2001, she was recovered by the police. On return from her Nanihal, victim''s mother Smt. Phoolmati P.W.1 got a report Ext.Ka 1 scribed and submitted it at the police station, where a Chik of F.I.R Ext.Ka 3 was scribed and a case was registered against the accused vide G.D. Ext. Ka 4.

The victim was sent for medical examination. Dr. Sadhna Pathak P.W.6 conducted the medical examination of the victim and prepared the report Ext.Ka 11. She was also sent for X-Ray. On the basis of the X-Ray report and the medical report, Dr. P.W.6 has opined that no definite opinion about rape can be given. However, in the opinion of the doctor, which was based on the supplementary report, the age of the victim was about 14 years.

S.I. Sri Raja Ram Yadav P.W.5 was entrusted with the investigation of this case. He recorded the statement of the complainant Smt. Phoolmati P.W.1 and Kandhai Lal. He also inspected the site of occurrence and prepared a site-plan Ext. Ka 5. On 17.4.2001, he recovered the victim and prepared a memo Ext. Ka 6. He recorded the statement of the victim. Salwar of the victim was taken into custody and a memo Ext. Ka 7 was prepared. He also prepared a site-plan of the place of recovery Ext.Ka 9. Thereafter the investigation was given to S.I. Sri Hari Ram Sharma, who filed a charge-sheet Ext. Ka 10 against the accused.

Accused Ram Prasad pleaded not guilty to charges u/s 366/376 IPC and stated that he has been falsely implicated in this case. He has further stated that the age of the victim was more than 18 years and that the victim was never kidnapped. Explaining the reason of his false implication, he stated that he was doing business in partnership with complainant Smt. Phoolmati and he had to realize a sum of Rs. 30000/- from her. When he demanded the said amount from Smt. Phoolmati, she quarreled with him and called her nephew Surendra. Due to this reason, a false report was lodged against him.

In support of its case, prosecution has examined Smt. Phoolmati P.W.1, victim P.W.2, Sri Bharat P.W.3, Dr. R.C. Agrawal P.W.4, S.I. Sri Raja Ram Yadav P.W.5 and Dr. Sadhna Pathak P.W.6.

No witness has been examined in defence.

Smt. Phoolmati P.W.1 and the victim P.W.2 have supported the prosecution version of the case. P.W.1 is the first informant of the case. At the time of occurrence, she was at her Nanihal. On her return, she learnt about the occurrence and lodged an F.I.R Ext.Ka 1. She has given the age of the victim as 14 years in the F.I.R. The victim also has given her age as 14 years. The ocular testimony of P.Ws. 1 and 2 finds support from the supplementary report of the doctor Ext.Ka 12, who has opined that the age of the victim was about 14 years. The victim has also stated that she was repeatedly raped by the accused.

Placing reliance upon the statement of the victim and the medical report Ext.Ka 12, learned trial court has found the accused appellant Ram Prasad guilty u/s 366/376 IPC and having heard him on the question of sentence, awarded him the sentences noted hereinabove.

I have heard Sri R.K. Dwivedi, learned Amicus Curiae for the appellant and learned A.G.A. for the State and have carefully perused the record.

The submission of learned Counsel for the appellant is that the age of the victim was 18 years or near that; thus, she had acquired the age of consent. For this reason, he has referred to the statement of the complainant P.W.1, who at page 3 of her cross-examination, has stated that she was married before 25 years and after about 3-4 years of the marriage, the victim was born. His submission is that if we take this statement on its face value, the victim was aged 20 years or more than that. However, the victim has denied the suggestion that she was 21 years old. We must keep in mind that the complainant is an illiterate rustic villager. Certain answers have been extracted from her cross-examination, which go to point out that the victim was more than 20 years old. However, in the F.I.R and the medical report, the age of the victim has been given as 14 years. The doctor''s opinion is based on the X-Ray report of victim''s elbow, knee and wrist joints, which is as follows:

X-Ray Rt. Elbow-joint:- Epiphyses around the elbow joint are fused except medial epicondyle, which is not fused.

X-Ray Rt. Knee-joint:- Epiphyses around the knee joint are not fused.

X-Ray Rt. Wrist-joint:- Epiphyses at lower end of Radius and Ulna are not fused.

On the basis of this report, the doctor has come to the conclusion that the victim was about 14 years old. Therefore, it will not be wise to have a different view when there is consistency in the statements of the complainant and the victim and the opinion of the doctor, which fully supports the age disclosed in the F.I.R.

Learned Counsel for the appellant has also submitted that the victim had gone with the appellant out of her free will and volition. For this, he has referred to the statement of the victim at page 8 of her cross-examination, where she has stated, "BHARAWAN MEIN MAIN DO BAJE PAHUNCH GAEE THI. BHARAWAN BUS ADDA PAR BAHUT SI DUKANE VA BAZAR HAI. BHARAWAN MEIN MUJHE KUCHH KHILAYA NAHIN THA." His submission is that the victim should have raised an alarm if she was not a consenting party. We may not lose sight of the prosecution case. The victim herself says that she was enticed away on the promise of good clothes and valuable articles. Therefore, the question of being taken away by force does not arise. The point of raising alarm could arise only if some force or threat had been used against the victim.

Learned Amicus Curiae for the appellant has also referred to the finding of the trial court where it has been held that the victim had gone with the appellant out of own free will and volition. At pages 6-7 of the judgment, the learned trial court has recorded the following finding:

YADDYAPI KI SAKSHI SAVITRI APNE BAYAAN MEIN KAHI HAI KI ABHIYUKT RAM PRASAD USKI ICHCHHA KE VIRUDDHA USKE SAATH BALATKAR KIYA LEKIN USKE PEETH PAR NA TO KOI CHHILNE KA NISHAN THA, NA HI USKI AACHARAN SE KAHIN YEH PRAKAT HOTA HAI KI VAH BALATKAR KA PRATIRODH KI HAI, BALKI USKE BAYAAN SE YEH SPASHT HOTA HAI KI VAH APNI ICHCHHA SE ABHIYUKT RAM PRASAD KE SAATH GAEE AUR USKE SAATH SAMBHOG BHI ABHIYUKT RAM PRASAD DWARA USKE ICHCHHA SE KIYA GAYA LEKIN CHOONKI APAHARITA SAVITRI DEVI KI AAYU 14 VARSH SE KAM THI. AISI PARISTHITI MEIN ABHIYUKT RAM PRASAD DWARA USKI ICHCHHA SE BHI USKE SAATH KIYA GAYA SAMBHOG BALATKAR KA APRAADH HAI.

The submission of learned appellant''s counsel is that the learned trial court has held that the victim had gone with the appellant with her free will and had also established physical relationship with him willingly. This finding of the learned trial court has overlooked the important fact that the victim was enticed away by the appellant on the pretext of giving her good clothes and articles. When this enticement is there, question of free will go into oblivion. This finding of the learned trial court is not consistent with the evidence available on record. The victim has repeatedly said that she was enticed away by the appellant. The age of the victim has already been established as 14 years.

Learned Amicus Curiae has vehemently argued that the sentence of ten years R.I. is too excessive a sentence. He has appealed that the sentence of imprisonment should be reduced to the period of imprisonment already undergone because the appellant is in jail since 18.4.2001. This is a case where a victim of 14 years has been ravished by a grown-up man of 35 years, who too was a relation. Therefore, leniency in the matter of sentence is not called for.

The appeal is devoid of merit and the same is hereby dismissed. The judgment and order under appeal is hereby confirmed.

A sum of Rs. 5500/- shall be paid to Sri R.K. Dwivedi, learned Amicus Curiae for the appellant.