Shanker (In Jail) vs State of U.P.

Vinod Prasad, J.—Appellant Shanker though this appeal has challenged his conviction u/s 376 I.P.C. and sentence of life imprisonment with fine of Rs. l0000/- (Rs. Ten Thousand) recorded by XIII, Additional District and Sessions Judge, Kanpur Nagar in Sessions Trial No. 834 of 1998, State v. Shanker, u/s 376 I.P.C., police station Cantt., Kanpur Nagar. Additional District and Sessions Judge had further ordered that in default of payment of fine appellant shall undergo two years further imprisonment!: vide his impugned judgment and order dated 22.1.2000.

The prosecution allegations against the appellant are that Smt. Raj Kumari P.W. 3 was the wife of one Shree Pal an employee in Telephone Department. Shree Pal had lost his life and, it seems that on the basis of Dying in Harness Rules, Raj Kumari got an employment in the Telephone Exchange, Kanpur Nagar. From the wedlock of Shree Pal, Raj Kumari had three issues, namely, Prince, Manoj and the daughter Km. Mona @ Monica Singh (victim) P.W. 4. After the death of her first husband Smt. Raj Kumari P.W. 3, solemnized court marriage with the appellant Shanker a widower, who had a son and started living with him in mohalla Lalkurti, P.S. Cantt., district Kanpur Nagar along with her children. Raj Kumari P.W. 3, used to go on her duty daily after leaving the children under the care and custody of Shanker appellant who by profession was a private tailor. Duty hours of the informant Raj Kumari, P.W. 3 was from 6.30 A.M. to 6.00 P.M. Shanker''s son used to go with the informant to her working place in Telephone Exchange, Kanpur Nagar. On 27.2.1998 Raj Kumari suspected that her daughter Mona @ Monica Singh (P.W. 4) was not keeping well. On enquiry being made by her Mona @ Monica Singh informed the informant that after she leave for her duty, the present appellant who was her step father used to commit rape on her. Mona @ Monica Singh the victim was taken to doctor Laxmi Saighal P.W. 6 for her medical examination who directed her to Sita Pathology for her reports. The pathology report dated 27.2.1998 found the pregnancy test positive confirming that the victim was pregnant. Laxmi Saighal P.W. 6, after looking into the pathology report opined that victim had two months pregnancy. It is alleged that when the appellant came to know of the said fact he threatened the informant that if she will make any complaint, she and her children will be done to death. Informant Raj Kumari P.W. 3 got a F.I.R. (Ex. Ka-3) scribed through one Pawan Kumari Mishra and lodged it at the police station Cantt., District Kanpur Nagar on 1.3.1998 at 5.00 P.M. as crime No. 56 of 1998, under Sections 376/506 I.P.C. Constable 278 Shiv Ram Pal, P.W. 5 registered the F.I.R. and he has proved the chik F.I.R. Ex. Ka-6 and the relevant G.D. entry Fx. Ka-7. Investigation into the crime was instructed to S.I. Basant Pal P.W. 8 who copied the F.I.R. and G.D. entry, recorded the statement of the informant and the victim and arrested appellant Shanker on 4.3.1998. He copied his injury report and visited the spot and prepared site plan (Ex. Ka-10) and inspection note. He also copied the X-ray report and the medical report of the victim and thereafter submitted charge sheet No. 36 of 1998 (Ex. Ka-11) in the court against the appellant.

Dr. Laxmi Saighal, P.W. 6 had examined the victim on 27th February 1998 and had directed her for pregnancy test which was found to be positive. as stated above. Mona @ Monica Singh was again brought to her on 11.3.1.998 when she was bleeding profusely because she had aborted. She was treated by the said doctor with the help of her assistant doctor Sohba Nidhi and had prepared her report (Ex. Ka-7). For further management the victim was again brought the said doctor Laxmi Saighal on 15.3.1998 for check up on which the medicines were prescribed to her which prescription was in the hand writing of doctor Sobha Nidhi, which was proved as Ex. Ka-8.

Doctor R.N. Tripathi of V.H.N. Hospital, Kanpur Nagar had conducted the ultrasound test of Kuamri Mona @ Monica Singh on 5.3.1998 and from her ultrasound report he had found that the victim was pregnant by 8 weeks and 4 days with a live foetus. He had proved the ultrasound report of the victim as Ex. Ka-1.

Doctor Nilima Thaigal, P.W. 2 had also examined the victim on 2.3.1998 at 11.45 A.M. who was brought to her by Constable 582 Smt. Prakashwati for her examination. Doctor Nilima Thaigal P.W. 2 found that the victim was 145 cm. tall with 31 kg. weight. Her breasts were moderately developed, axillary hair and pubic hair mildly. developed. There was no external mark of any injury on her body. On internal examination she did not find any injury on her private part, hymen was old healed. She had prepared two slides of her vaginal smear for examination. She has referred the victim to a Radiologist for determining her age and had also advised urine test for detection of pregnancy. She has proved her report as Ex. Ka-2.

After the charge sheet was submitted in the Court appellant was summoned and his case was committed to the Court of Sessions for trial as Sessions Trial No. 834 of 1998 State v. Shanker which was transferred to XIII Additional District and Sessions Judge, Kanpur Nagar for trial.

On 1.8.1998 charge u/s 376 I.P.C. was framed against the appellant who denied the same and claimed to be tried.

In the trial, to prove the guilt of the appellant, prosecution examined in all eight witnesses out of whom Raj Kumari P.W. 3 and Mona, @ Monica Singh P.W. 4 were the witnesses of fact. Doctor R.N. Tripathi P.W. 1, doctor Nilima Thaigal P.W. 2, doctor Laxmi Saighal P.W. 6 and doctor N.K. Jaiswal P.W.7 were the doctors who had medically examined the victim at various stages. S.O. Basant Lal, P.W. 8 is the Investigating Officer.

P.W. 1 Sri R.N. Tripathi had conducted the ultra sound of the victim and in his deposition before the court, as has been stated above, he found the victim Kumari Mona @ Monica Singh to be pregnant by live pregnancy of 8 months and 4 clays on her examination on 5.3.1998 in V.H.N. Hospital, Kanpur Nagar. He had proved his ultrasound report as Ex. Ka-1. On being cross-examined he had admitted that he had not prepared in ultrasound plate and couldn''t tell about the physical measurements of the foetus. He further deposed that the ultrasound was conducted from all the sides and had denied the suggestions that he had not prepared his ultrasound plate because the victim was not pregnant.

Doctor Nilima Thaigal, P.W.2 in her deposition before he court proved medical examination report of the victim as Ex. Ka-2 referred to above and had stated that the victim was used to sexual intercourse but she could not tell for how many days she was indulging in sex. Pregnancy test report was not brought to her for her perusal nor the X-ray report was shown to her. Only ultrasound report was produced before her.

Raj Kumari, informant, P.W.3 supported her version levelled in the F.I.R. in her deposition before the Court and further stated that victim Mona @ Monica Singh was studying in Janta School, Panki and her date of birth is 1985. She had filed the school leaving certificate of the said school in the Court. She has further stated that she had performed court marriage with appellant Shanker three years prior. Her first child (son) was born to her from her first husband two years after her marriage with him. She gave birth to the second child (victim) one and a half years thereafter. Her third child, (son) was born two years after the birth of the second child. She further deposed that ten years after her marriage her erstwhile husband had died when both her elder children were studying in a Kidwai Nagar School but after his demise the children could not study further. She further deposed that she had nine siblings brothers and sisters. She deposed that she got the F.I.R. scribed from Pawan Kumar Mishra a friend of her nephew who used to visit her since last one and a half years. She showed her ignorance regarding other family details. Some contradictions in her statement from her earlier statement u/s 161 Cr.P.C. were put to her which she denied emphatically and to us which are wholly insignificant. She further deposed that the house of the appellant consisted of two rooms and the parents of the appellant use to reside in Delhi and were very old septuagenarians. She admitted that she had not seen the appellant committing rape on the victim. She had denied the suggestions that only on the basis of suspicion she has implicated the appellant.

Kumari Mona @ Monica Singh P.W.4 the victim in her statement before the court stated that she was 14 years of age and Shree Pal was her father who had died 8 or 9 years ago and then her mother Smt. Raj Kumari P.W. 3 had entered into second marriage with the appellant. On the other aspects of the matter she also confirmed the evidence of Smt. Raj Kumari P.W. 3 and had stated that when her eldest brother use to accompany the informant on her duty and her younger brother use to go to school along with the son of the appellant then the appellant use to commit rape on her, because of which her lower limbs became weak. One day informant had questioned her for the cause of her weakness then she had narrated the whole incidents. Her mother had taken her to doctor Laxmi Saighal for medical check up and. after being confirmed that she was pregnant, that her mother lodged the F.I.R. In her cross-examination she deposed that her mother had married with the appellant in 1995 and immediately after the marriage she had come to Lalkurti to live with the appellant. She deposed that she had earlier studied in Janta Primary School and after they had come to live with the appellant she had not gone to the school. Regarding the plan of the house she had mentioned that it consisted of only two rooms. She had also stated that parents of the appellants used to reside in Delhi. She had denied that Pawan Kumar Mishra used to visit her house and she had met him. She also stated that the scribe was not known to her mother since before. From her searching and thorough cross-examination it transpires that she has stated that at the time of intercourse blood had oozed out which was socked in her cloth and whenever she tried to shriek she was threatened that her whole family will be annihilated. She also stated that she was subjected to rape by the appellant five or six months prior to the lodging of the F.I.R. Some contradictions were put to her which were denied by her. She had denied the suggestions that she was having an illegal relationship with Pawan Kumar Mishra, the scribe and the appellant had never committed rape on her and because he use to scold her not for attending the school etc. that she has falsely implicated the appellant. She was also recalled for re-examination wherein she had stated that she had become pregnant because of rape committed by the appellant. On 11.3.1998 she had slipped from the staircase as a result of which she started bleeding profusely and therefore she was admitted in Laxmi Saighal''s Nursing Home where she aborted. She has stated that she had slipped from three or four steps and she did not know what was the rent of her current abode.

Constable Shiv Ram Pal proved the chik F.I.R. Exhibit Ka-6 and the G.D. entry Ka-7. He has stated that he had sent the victim along with Constable Prakashwati from her medical examination. He had denied the suggestions that he has registered the F.I.R. under the pressure of the scribe.

Doctor Laxmi Sahgal P.W. 6 deposed before the Court, as has been mentioned above, that she had examined victim on 10th January 1998 when she was suffering from heavy fever and then subsequently on 27.2.1998 and had advised for her pregnancy test and directed her to go to Sita Pathology, Arya Nagar, Kanpur Nagar. Her pathology report was positive. Thereafter the victim was again brought to her on 11.3.1998 when she was bleeding profusely because of the abortion. She had got the victim aborted and she had proved Exhibit Ka-7 and Exhibit Ka-8 her to medical prescriptions. She had mentioned that she cannot say at what time the victim was brought to her. She had stated that whenever she makes a reference for medical tests the said reference is made on a separate paper. She further stated that exhibit Ka-7 and Ka-8 were prepared at her dictations by her assistant doctor Sobha Nidhi. She further deposed that victim if would not have been aborted on 11.3.1998 she would have died.

Doctor A.K. Jaiswal, P.W. 7, Radiologist stated before the court that on 4.3.1998 he had X-rayed the victim and her elbow and knee joints were not fused. She had proved his X-ray report as Exhibits Ka-9 and X-ray plate as material Exhibits Ka-1. Nothing material has been elicited from his cross-examination.

S.O. Basant Lal Pal, P.W. 8 I.O. of the crime had proved various steps of investigation and had stated that he had recorded the statement of the victim but had not recorded the statement of the scribe because he might be the son of the police officer. He further admitted that he had not examined doctor Laxmi Saighal during the investigation. From her cross-examination nothing material has been elicited except the fact that the appellant had a son aged about 4 or 5 years who use to go to the school.

In his statement u/s 313 Cr.P.C. appellant Shanker has denied the offence and took the defence that the victim used to live with anti-social elements and use to elope for many days which he had restricted therefore, on mere here say evidence he has been falsely implicated.

XIII Additional District and Sessions Judge, Kanpur Nagar findings the case of the prosecution proved to the hilt convicted the appellant u/s 376 I.P.C. and sentenced him for life imprisonment which conviction and sentence is under challenged in this appeal.

After preparation of the paper book this appeal was listed for hearing but nobody appear from the side of the appellant as is perceptibly form the order sheet dated 1.3.2007. Hence, we appointed Sri Samit Gopal, Advocate as Amicus Curiae to argue the appeal on behalf of the appellant Shanker.

We have heard Sri Samit Gopal at a great length and Sri Sayed Ali Mutrza, learned A.G.A. in opposition and have gone through the entire record of this appeal including the evidences.

Sri Samit Gopal, learned Counsel for the appellant submitted that appellant has been falsely implicated in this case and the victim was entangled with the scribe Pawan Kumar Mishra who was the son of a police officer and the appellant had raised objections to it and therefore, he has been falsely implicated. Learned Counsel further submitted that from the evidence of P.W. 1 doctor R.N. Tripthi, it is clear that no slide of ultrasound was prepared ostensibly because the victim was not pregnant. Learned Counsel further submitted that doctor Nilima Thaigal, P.W.2 was not shown the X-ray and the pathology report and so far as evidence of doctor A.K. Jaiswal P.W. 7 is concerned the same is wholly inconclusive regarding the age of the victim who could be a major. He further contended that the charge of rape has not been established by cogent and reliable evidence against the appellant and therefore, the appeal should be allowed.

However, in the alternative learned Counsel for the appellant contended that imposition of sentence of life imprisonment of appellant is an excessive sentence and therefore, should be reduced. In support of his aforesaid submission Sri Samit Gopal relied upon two judgements, one reported in T.K. Gopal @ Gopi Vs. State of Karnataka, and the other judgment reported in 1980 CRLJ 1380 Dinesh @ Buddha Vs. State of Rajasthan, State of M.P. Vs. Bala @ Balaram, State of Madhya Pradesh Vs. Balu, Madan Gopal Kakkad Vs. Naval Dubey and Another, On the basis of the aforesaid judgements Sri Samit Gopal contended that the appellant had remained in jail for 9 years and therefore, his sentence of imprisonment should be reduced to the period of sentence already undergone by him as he had a son who is now 13 or 14 years of age to foster and old parents to be looked after in Delhi who are old more than septuagenarian and confined to bed.

Learned A.G.A. on the other hand contended that the evidence of the two star prosecution witnesses Raj Kumari, P.W. 3 (informant) and Kumari Mona Singh @ Monica , P.W. 4 (victim) are of unimpeachable character and their evidence coupled with the evidence of the doctors fully establishes the guilt of the appellant to the hilt and the appeal is merit less an deserves to be dismissed. He further contended that looking to the gravity of offence and the fact that victim had become handicapped that the sentence of life imprisonment should not be reduced.

We have considered the arguments of both the sides on both the factual aspects as well as on the question of sentence. From the evidence of P.W. 3 Raj Kumari the informant and P.W. 4 Mona @ Monica Singh the victim, we have not able to find act anything favourable to the appellant. Appellant was the step-father and a private tailor by profession. His tailoring business was in his own house. He also had a son aged about 4 or 5 years. Informant was a working lady gainfully employed in Telephone Exchange Department, Kanpur Nagar. It was very natural for her to leave her three children in the care and custody of the appellant while going on her duty. The naturality of allegation in the circumstance, therefore, cannot be doubted. Further there is no material on record worth acceptable that the allegations of rape implanted of the appellant was false. Nothing has been elicited from the testimony of the victim P.W. 4 Kumari Mona @ Monica Singh, which even slightly dents the prosecution version in that respect. We have carefully examined her testimony. The testimony is so innocent, free of flaw that we have no doubt in our mind that whatever she has stated regarding the offence is absolutely correct. Her testimony further finds corroboration from the evidence of doctor Laxmi Saighal, P.W. 6. From her evidence it is established that victim had a pregnancy of 8 weeks and 4 days when she was examined on 27th February 1998 and that subsequently she got her aborted on 11th March 1998 because the facts had stilled in the womb and the victim was profusely bleeding. The evidence of this doctor Laxmi Saighal, P.W.6 is well supported by the evidence of doctor R.N. Tripathi P.W. 1 and doctor Nilima Thaigal P.W. 2. From the aforesaid evidences of four witnesses there is no room for doubt that the victim was subjected to rape and had become pregnant and was subsequently aborted.

The suggestion of the defence that victim was entangled with scribe Pawan Kumar Mishra, which was objected to by the appellant and therefore, he has been falsely implicated is not acceptable to us. There is unrepeatable evidence that the appellant had a tailoring business in his house and therefore, he must have been present in the house at all the relevant times specially when the informant would have gone for her job as the small children where in his care and custody. In such a view it is difficult for us to believe that scribe Pawan Kumar Mishra would have been successful in making intercourse with the victim. Merely because Raj Kumari P.W. 3 had stated that he used to visit her house even when her mother was absent does not damage the unimpeachable evidence of the prosecutrix. On an overall considerations of all the facts we are of the opinion that on the merits of the matter this appeal is merit less and the conviction of the appellant recorded by the trial court has to be confirmed.

Now coming to the sentence part of the argument raised by learned Counsel for the appellant. For the said purpose we have thought over the matter and have gone through the various ruling cited by either sides.

From the facts of the case it is perceptible that the appellant is guilty of ravishing chasty of his own step daughter tarnishing the trusted faith reposed in him by the informant. The preserver and fosterer had turned himself into a monster. He has not only smudged the most pious relationship of father and daughter but has brought such blemishful slur on the victim that she can never get over it till her last date in this ephemeral life. Taking advantage of the haplessly helpless victim who also became handicapped subsequently is a crime which is most gruesome and heinous. Showing deep anguish over, such offences it has been observed by Hon''ble V.K. Krishna Aiyyar J in Rafiq Vs. State of U.P., as follows:

When rapists are revelling in their promiscuous pursuits and half, of humankind - womankind - is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even it, taken as a whole, the case, spoken to probable. In this case, the testimony has commanded acceptance from two courts. When a woman is ravished what is inflicted is not merely physical injury but "the deep sense of some deathless shame.

A rape a rape....Yes, you have ravished justice; Forced her to do your pleasure.

Hardly a sensitized judge who sees the conspectus of circumstances in its totality and rejects the testimony of a rape victim unless there are very strong circumstances militating against its veracity. None we see in this case, and confirmation of the conviction by the courts below must, therefore, be a matter of course. Judicial response to human rights cannot be blunted by legal bigotry.

In similar circumstances The Apex court has held in State of Himachal Pradesh Vs. Asha Ram, as follows:

This leads us to consider as to the quantum of punishment. The Trial Court on conviction sentenced the respondent to 5 years'' rigorous imprisonment and a fine of Rs. 1,000/- and in default, rigorous imprisonment for 3 months. Here is the case where the crime committed by the respondent not only delicts the law but it has a deleterious effect on the civilized society. Gravity of the crime has to be necessarily assessed from the nature of the crime. A crime may be grave but the nature of the crime may not be so grave. Similarly, a crime may not be so grave but the nature of the crime may be very grave. Ordinarily, the offence of rape is grave by its nature. More so, when the perpetrator of the crime is the father against his own daughter it is more graver and the rarest of rare, which warrants a strong deterrent judicial hand. Even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of hapless woman. This is more so when the perpetrator of the grave crime is the father of the victim girl. Father is a fortress, refuge and the trustee of his daughter. By betraying the trust and taking undue advantage of trust reposed in him by the daughter, serving food at odd hours at 12.30 a.m. he ravished the chastity of his daughter, jeopardized her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated. Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives.

In the said case the sentence of the accused was enhanced to life imprisonment from the sentence of five years R.I. by the Apex Court.

From the discussions made above we have not found any mitigating factor favourable to the appellant to reduce his sentence from what has been awarded on him. Resultantly we find no reason to interfere with the sentence of the appellant as well.

Concludingly, we don''t find any illegality in the impugned judgment and order of conviction and sentence and therefore dismiss this appeal of the appellant in full.