Penal Code, 1860 – S. 376(2)(g) – Rape on the prosecutrix leaves a scare on her soul but a false accusation of rape on a man also may leave a scar on his whole personality.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon’ble Mrs. Ranjana Pandya,J.
CRIMINAL APPEAL No. – 2717 of 2011
Appellant :- Khalid & Another Vs. Respondent :- State Of U.P.
Counsel for Appellant :- Prashant K. Lal,Gaurav Kakkar,Mrs Swati Agrawal,Shams Uz Zaman
Counsel for Respondent :- Govt. Advocate
CRIMINAL APPEAL No. – 2758 of 2011
Appellant :- Ashfaq Vs. Respondent :- State Of U.P.
Counsel for Appellant :- Farid Ahmad Qureishi,Braham Singh,Shams Uz Zaman
Counsel for Respondent :- Govt. Advocate
1. Challenge in these appeals is to the judgment and order dated 26.04.2011, passed by Additional District & Sessions Judge, Court No. 10, Bijnor, in Sessions Trial No. 418 of 2008 (State vs. Khalid and others), arising out of Case Crime No. 88 of 1993, under Section 376(2)(g) I.P.C., Police Station Badhapura, District Bijnor, whereby the appellants Khalid, Sajid and Ashfaq were found guilty under Section 376(2)(g) I.P.C. and sentenced to undergo 10 years’ rigorous imprisonment along with fine of Rs. 5000/- each with default stipulation.
2. Filtering out unnecessary details, the prosecution case in brief is that an application was moved by the informant to the S.P., Bijnor stating that her daughter is a minor. Her husband had sown wheat in the fields of Abid on agreement to get half of the wheat. The wheat crop was standing in the field. The accused Kalloo, Khalid, Ashfaq and Sajid are miscreants, characterless, dangerous type of people who also keep illegal weapons with them. Towards the north of the aforesaid field, a room of the accused persons is also situated. On 14.04.1993, the husband of the informant had gone to Ludhiyna (Punjab) and the victim had gone to the jungle to bring grass. On the same day at about 05:00 P.M., the fields in which the husband of the informant had sown wheat, pigs had entered, at which the sister-in-law (Deorani) of the informant asked the victim to drive away the pigs from the field. When the victim was taking away the pigs towards the south, seeing the victim alone, the accused persons came from that room and Kalloo pressed the mouth of the victim, Khalid took out the knife in his hand, Ashfaq and Sajid picked up the victim and took up her in the eucalyptus fields of Istkammudin which was situated to the south of the field in which the husband of the informant had sown wheat. The victim was put down on the ground, Khalid had cut the tape of her Salwar with the knife, Kalloo gagged the mouth of the victim with cloth and raped her. Ashfaq and Sajid caught her hands due to which her bangles were broken. After that Ashfaq, Khalid and Sajid also raped her one by one. When the victim did not returned home for quite some time after driving away the animals, her aunt Ameena went to the spot searching for her and she shouted at which Shami, Abdul Rahim and Abdul Hamid also reached at the spot. The accused saw the witnesses coming at which they left their sleepers and knife and fled away. When the accused were fleeing, they threatened that if any action has taken against them, they would kill everybody. Ameena and other witnesses brought the victim home in an unconscious state. When the informant returned home, Ameena and the victim narrated her the whole incident. When the victim regained the consciousness, she was being taken by the informant to the police station. The brother-in-law (Devar) of the informant was also with her on the way. They met Abdul Malik, Shahid, Ali Hussain, Abdul Shami all the relatives of the accused and Juhurul Hasan, who said that they would paint the faces black of their relatives who are accused, made them sit on donkey and whatever fine would be imposed by the Panchayat would be paid by them. Further, he said that if the witnesses and the informant could not return back then they would be dealt with more badly and their corps would be set to fire. The informant got frightened and drew back her daughter. Next day, the informant sent her brother-in-law (Devar) to fetch her husband, who came back and went to the police station to lodge the report. The police took the knife in their possession but the report was not lodged, hence the informant has moved an application before the S.P., Bijnor, then the report was lodged.
3. On the basis of the written report, PW-7 is Rajendra Kumar Sharma, Chowki Incharge, scribed the chik which was proved by this witness as Exhibit Ka-7. This witness further proved the copy of G.D. as Exhibit Ka-8. The witness has stated that the victim and the complainant came to the police station on 19.04.1993. She also handed over her Salwar on which she claimed stains of blood and semen and handed it over to this witness which was seized by this witness in the presence of witnesses which was sealed and the seizure memo was prepared and proved as Exhibit Ka-9. On the same day, a pair of sleepers which was said to have left by the accused was seized in the presence of the witnesses. It was wrapped in a piece of cloth and sealed. The memo was prepared. The witnesses signed the memo which was proved by this witness as Exhibit Ka-10. The witness proved the clothes as material Exhibit-1, Salwar as material Exhibit-2 and the pairs of sleepers as material Exhibit-3.
4. PW-5 is Dhirendra Singh Yadav, who conducted the investigation in the matter. He copied the chik report in the case diary. He further copied the seizure memo in the case diary. He prepared the site plan on the pointing out of the informant and the victim, which was proved by this witness as Exhibit Ka-4. The medical report of the victim was copied in the case diary by this witness. Further, the witness recorded the statements of witnesses Abdul Rahim and Abdul Hamid etc. The accused were arrested, their statements were also recorded. The clothes of the victim was sent to the Forensic Lab for chemical analysis. The robkar was proved by this witness as Exhibit Ka-5. PW-6 is S.I. Raj Kumar, who proved the copy of G.D. as Exhibit Ka-6. Dr. Smt. Beenu Gupta is PW-4, who conducted the medical examination of the victim. She did not find any external or internal injury on the body of the victim. The vagina was admitting two fingers easily. The hymen was old torn. There was no swelling and bleeding from vagina. This witness proved the medical report as Exhibit Ka-2 and the radio logical report as Exhibit Ka-3.
5. The prosecution has examined as many as seven witness. PW-1 is the informant, who proved the written report as Exhibit Ka-1. PW-2 is the victim. PW-3 is Smt. Ameena, who is said to be an eye witness.
6. PW-4 is Dr. Smt. Beenu Gupta, PW-5 is Dihrendra Singh Yadav, PW-6 is Raj Kumar and PW-7 is Rajendra Kumar Sharma, whose evidences have earlier been discussed above.
7. After close of the prosecution evidence, the statements of the accused appellants have been recorded under Section 313 Cr.P.C. in which they denied the occurrence and have stated that they have been falsely implicated in this case due to enmity regarding land property. The accused Ashfaq has further stated that the informant and her family members used to throw garbage in his fields due to this enmity, they had been implicated.
8. The accused persons has examined DW-1 Bhoorey and DW-2 Shajeed Hussain in their defence.
9. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment.
10. Feeling aggrieved, the accused have come up in appeal.
11. Heard Sri Anil Kumar Srivastava and Mrs. Swati Agrawal, learned counsel for the appellants, learned Additional Government Advocate for the opposite party and perused the lower court record.
12. Learned counsel for the appellants has vehemently argued that there is delay in lodging the first information report, inasmuch as, the occurrence is said to have taken place at 14.04.1993 at 05:00 P.M., whereas, the report was lodged on 19.04.1993 at 16:00 hrs. The police station being 6 Kms. away from the place of occurrence. In this regard, in the first information report itself, it has been stated that when the victim regained her senses, she was taken by the informant to the police station to lodge the first information report. When the relatives of the accused met her, they threatened her, then she called her husband who came on 18.04.1992 and on 19.04.1993, the report was lodged. It appears that the date of going of the husband of the informant was wrongly typed as “18.04.1992”. The informant was examined by the court who has stated that after the occurrence, the accused threatened her, when she was going to the police station. She returned home due to their fear and did not do anything. Then she sent for her husband on 18.04.1993 to the police station but her report was not lodged, although the police personnel kept the Salwar, knife and sleepers with them. Next day, an application was moved to the S.P., then the report was registered. This statement of the informant does not find support from the documentary evidence, available on record because the recovery memo, as per seizure memo Exhibit Ka-9, the clothes of the victim was taken into the possession by the police on 19.04.1993 and the recovery memo bears the thumb impressions of the victim along with other witnesses. Similarly, a pair of sleepers was taken in the possession of the police on 19.04.1993. Seizure memo was prepared and the recovery memo is Exhibit Ka-1 which was also prepared on 19.04.1993. there is no reason why, police would keep the clothes and the sleepers handed over by the informant for no rhyme and reason besides as per the version of the informant, the knife was also taken to the police station which was taken by the police into custody but neither, the seizure memo of the knife are available nor there is any evidence on record to show that the knife was ever handed over to the police. If the husband of the informant had gone to the police station, there was no reason why the police did not lodge the report on the same day and if at all the reason was correct. The prosecution could have called for the copy of the G.D. to prove that the husband of the informant had gone to the police station but his report was not lodged.
13. In AIR 2000 Supreme Court page 1812, (State of Rajasthan vs. N. K. Accused), the Hon’ble Apex Court has laid down as under:-