Child Witness; Subrati Vs. State of U.P. [Allahabad High Court, 26-09-2016]

Penal Code, 1860 – S. 376 – Rape – Child Witness – the victim is below the age of 10 years – She has stated that due to pain, she became unconscious – she was also suggested in cross-examination that she was stating against the accused because she was tutored by the Sub-Inspector which was negativated by this witness – the testimony of the victim and the informant remained unshaken and is supported by the evidence of PW-5 Dr. Talat Jahan who has stated that the injuries were indicative of rape – the statement of the victim is very innocent and she does not appear to be tutored. She underwent the test of cross-examination by an Advocate and there is nothing in her evidence by virtue of which she could be termed to be a tutored witness – the prosecution has successfully proved that the accused has committed rape on the victim.

Victim


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

CRIMINAL APPEAL No. – 428 of 1995

Appellant :- Subrati

Respondent :- State Of U.P.

Counsel for Appellant :- Mohd. Arif Khan,Raj Bux Singh,Ram Ujagir Pandey,Rishad Murtaza,Sarojini Bala Yadav,Shamim Raza

Counsel for Respondent :- Govt. Advocate

Hon’ble Mrs. Ranjana Pandya,J.

1. Challenge in this appeal is to the judgment and order dated 11.08.1995 passed by IIIrd Additional Sessions Judge, Sultanpur, in S.T. No. 250 of 1990 (State vs. Subrati), under Section 376 I.P.C., P.S. Musafirkhana, District Sultanpur, whereby the accused appellant was convicted and sentenced to 7 years rigorous imprisonment under

Section 376 I.P.C.

2. Filtering out unnecessary details, the prosecution case is that a report was lodged by the victim stating that she was aged about 10 years. On 16.03.1990, she had gone to the fields for some work. In the adjoining fields, the accused was collecting grass. The accused came to the victim and requested her to accompany him so that he would give her plums. The victim refused. At which the accused picked up the victim, pressed her mouth and took her towards the western side. He dropped her on the ground, took off all her undergarments and raped her. The victim raise hue and cry at which, the accused fled away. The victim was bleeding. After some times, the mother of the victim came on the spot and brought back the victim to her house, at which the first information report was lodged. On the basis of first information report, the investigation commenced.

3. The prosecution examined as many as 7 witnesses. PW-1 is the victim, who proved the first information report as Exhibit Ka-1. PW-2 is Smt. Rampata, the mother of the victim. PW-3 is Kalicharan who went to the police station with the victim and lodged the report. PW-4 is Brijlal who proved the memo by virtue of which blood stained and plain earth was collected by the I.O. which is Exhibit Ka-2. Further the blood stained undergarments of the victim was taken into possession in the presence of this witness. The recovery memo was proved by this witness as Exhibit Ka-3. PW-5 is Dr. Talat Jahan who examined the victim and found the following injuries on the body of the victim:-

“Forchette torn in the mid line. Perennial tear present extending upto 2 mm. away from the inner margin. Libra minora lacerated. Vaginal Mucosa torn and hanging out of the vagina. Vaginal mucosa torn extensively on all sides. Hymen torn. Fresh bleeding from the vagina present.

Two slides vaginal smear sent for detection of spermatozoa and gonacocei.”

4. The victim was sent by the doctor for determination of age. This witness has proved the medical report as Exhibit Ka-4 and the pathological report as Exhibit Ka-5. Head Constable Ram Murti Singh is PW-6 who scribed the chik report which was orally dictated by the victim informant. Further details of the case were written in the G.D. which proved by this witness as Exhibit Ka-7. The investigation was conducted by PW-7 S.I. Ram Chet Singh in whose presence the case was registered. He copied the copy of chik and G.D. in the case diary and recorded the statement of the victim who was present at the police station. After that the victim was got medically examined but before that, the accused Vijay Pratap and others kidnapped the victim and her aunt (Bua) for which a separate case was registered under Crime No. 91 of 1990, in which case, the victim was recovered but the accused fled away. Then the victim was again sent to district hospital for medial examination. The I.O. inspected the spot on 17.03.1990. He recorded the statements of the mother of the victim and Ram Charan and inspected the spot. He proved the site plan as Exhibit Ka-8. The Investigating Officer found blood on the place of incident. He collected the blood stained and ordinary earth from the place of occurrence and kept it in two boxes, sealed them and prepared the memo which was signed by this witness. He made attempts to apprehend the accused but the accused could not be apprehended, hence he obtained the process for attachment of the property of the accused but came to know that the accused was detained in the district jail where the statement of the accused was recorded. In the mean time, this witness obtained the medical report and the pathological report of the victim. After investigation, he submitted charge sheet which was proved by him as Exhibit Ka-9. On 22.03.1990, after the statement of the victim was recorded under Section 164 Cr.P.C., the victim was handed over to her family members. Supurdginama was proved by this witness as Exhibit Ka-10.

5. After the prosecution evidence was closed, the statement of the accused was recorded underSection 313 Cr.P.C. In which he denied the occurrence. Further he has stated that he was enemical to Kalloo and Ram Kripal of the same village. He had been falsely implicated due to this enmity. The accused produced Constable Ram Kripal Sharma as DW-1 who proved the copy of the G.D. as Exhibit Kha-1.

6. After perusal of all the evidences available on record and hearing the counsel for the parties, the learned trial court has passed the impugned judgment as specified in para one of the judgment.

7. I have heard Sri Ram Ujagir Pandey as well as Ms. Sarojini Bala Yadav, counsel for the appellant, learned A.G.A. and perused the material available on record.

8. Counsel for the appellant has submitted that the trial court has not considered the evidence adduced by the defence. Besides the trial court has lost sight of the fact that all the witnesses adduced by the prosecution are interested witnesses, hence, they cannot be relied upon. Further, he has submitted that the accused was not known to the victim, hence, the appeal is liable to be allowed.

9. Per contra, learned A.G.A. Has submitted that there was no reason for the victim to falsely implicate the accused. The judgment is well reasoned and needs no interference.

10. As far as the first information report is concerned, on the basis of the first information report, the police machinery is brought into motion. Perusal of the chik report Exhibit Ka-1 reveals that the incident took place on 16.03.1990 in the afternoon. The report was lodged on the same day at 02:15 P.M. The distance of the police station from the place of occurrence being 8 Kms., thus, the first information report is prompt and chances of embellishment and and false implication are bleak.

11. I have carefully perused the chik report. A bare perusal of the chik report reveals that the chik report was dictated by the victim herself whose age as per first information report was about 10 years. A bare reading of the first information report reveals that this first information report was dictated orally to the Head Moharrir of the police station by the victim in her local regional language. The victim has narrated the complete incident in her own language categorically. Challenging this first information report, counsel for the appellant has submitted that the first information report has been lodged after consultation but this argument has no legs to stand, inasmuch as, the informant being the victim has specifically stated that she lodged the report prior to her medical examination.

12. Counsel for the appellant has also submitted that PW-1 is the victim and the informant. PW-2 is Smt. Rampata, the mother of the victim. PW-3 is Kalicharan, the uncle of the victim and belong to the same family. All are interested witnesses, hence their evidence cannot be relied upon. As far as the evidence of interested witnesses is concerned, there is no quarrel that PW-1, PW-2 and PW-3 are related to each other. Learned A.G.A. has submitted that the evidence of related witnesses cannot be thrown out merely on the ground of their relationship. As far as, the reliability of the witnesses is concerned in