Banney Alias Laxmi Shankar vs State of U.P.

Yogendra Kumar Sangal, J.—This appeal was filed by the accused in S.T. No. 586/1991 u/s 376, 504 and 506 IPC, P.S. Sakran, District Sitapur related to case crime No. 74/1990 against the judgment and order dated 26.05.1993 passed by VI Additional Sessions Judge, Sitapur convicting the accused-Appellant for the charge u/s 376 IPC and acquitted him for the offence u/s 506 subclause (2) IPC. He was sentenced to undergo 10 years R.I.

As per prosecution case, prosecutrix was grazing her she Buffalo near Khanta Tal towards South of her village. After some times, she Buffalo disappeared and she was in its search. Accused meet her and on his information that she Buffalo is in the grove of Banwari when she was going towards the grove of Banwari. Accused Banne alias Laxmi Shanker came there and caught and drawn her towards the grove of Banwari with a bad intention. When she tried to raise alarm, her Dhoti was inserted in her mouth and she was forced to lay down on the earth and he committed rape on her. After committing the offence, he has also threatened her to face the consequences, if she utter about the incident to anybody. However, she raised alarm, Avatar, Chandrika came there. Accused succeeded in escaping from there. As her husband was out of village, Shatrohan was sent to inform and to call her husband. When he came, a report was lodged at police station concerned. On the same, a case was registered against the accused for the offence u/s 376, 504, 506 IPC. Investigating Officer started investigation in the matter. Dhoti of the prosecutrix was taken and memo was prepared. She was sent for medical examination and report was collected. Statement of witnesses were recorded. Site plan of place of occurrence was prepared and after concluding the investigation, he had submitted charge-sheet against the accused for his trial.

After taking cognizance in the matter, learned Magistrate has committed the case to the Court of Session as the case was exclusively triable by the Court of Session. Learned Session Judge framed charges against the accused for the trial u/s 376, 506 Sub-clause (2) IPC, but the accused claimed not guilty and pleaded for his trial.

On behalf of the prosecution 5 witnesses were examined. PW-1 is the prosecutrix who had tried to support the prosecution case and proved written report Exhibit-Ka-1. PW-2 Ram Avatar said to the witness of the fact that at about 12''O clock on the date of occurrence after hearing the noise, when he reached at the place of occurrence, he saw that accused was coming out from the grove and he was running towards the East. Prosecutrix was coming behind him and she was weeping at that time. On her inquiry, she stated about the occurrence to him and accused succeeded in escaping from there. PW-3 Constable Munni Lal Yadav stated that on the basis of written report Exhibit-Ka-3, he prepared the chik report. He had also stated that he prepared the memo about taking the Dhati of the prosecutrix Exhibit-Ka-3 and made entries about registration of case in the G.D., copy Exhibit-Ka-4. PW-4 Dr. Pramila Tiwari stated that she examined the prosecutrix on 16.06.1990 and no mark of injury was found on the body of the prosecutrix. She referred her to the Radiologist for X-ray for determination of her age. After going through the report of Radiologist available on the record, she opined that prosecutrix was more than 19 years of age and she was habitual for the sexual intercourse and no opinion about rape can be given. PW-5 the Investigating Officer of the case had stated that he has completed the investigation in the matter and submitted charge-sheet against the accused and proved the documents prepared during the course of investigation.

In his statement u/s 313 CrPC, accused has denied the correctness of the prosecution case and evidence and stated that brother of Avatar has took out the Sarso (Mustered) plant from his field and he had beaten him, due to this cause only he was falsely implicated in this case. No evidence in defence was adduced by him.

After going through the record, hearing the arguments of counsel for the accused and State counsel and appreciating the evidence available on the record, learned trial court held guilty to the accused-Appellant for the offence u/s 376 IPC and sentenced him as above. Aggrieved by this judgment and order, this appeal has been filed. Accused was acquitted for the charge u/s 506 Sub-clause (2) IPC. Learned AGA had not pressed that any appeal has been filed against the order of acquittal of the accused for the offence u/s 506 Sub-clause (2) IPC.

Earlier appeal was filed by counsel for the accused, but later on, on the request of accused Amicus Curia was appointed in the matter vide order dated 07.08.2009 to argue the case on his behalf.

Heard learned Counsel for the accused (Amicus Curaie) on behalf of the accused and learned AGA for the State and perused the record.

PW-1 is the prosecutrix of the case. She is undisputedly an adult lady and her age as per medical report was more than 19 years at the time of occurrence. She is married and as per doctor''s report, she was having a child also. Prosecutrix and accused belongs to the same village, it is clear from the record and nowhere accused has claimed in his statement u/s 313 Code of Criminal Procedure that prosecutrix was not knowing him earlier i.e. before the date of occurrence. Accused was named by her in First Information Report (FIR) also. As per her oath statement, she was ravished by the accused-Appellant on the date, time and place given in the FIR. Nowhere in his statement u/s 313 Code of Criminal Procedure accused has claimed that she was consenting party in the matter, although, learned Counsel for the accused-Appellant raised this plea before the learned trial court that she may be consenting party in the matter, but the learned trial court has not accepted this argument of learned Counsel for the accused giving detailed and sufficient reasons. In the appellate court before me no such argument of consenting party was raised on behalf of the Appellant and there is also nothing as such in the grounds taken on behalf of the accused in memo of appeal. In her oath statement, she had given all details how the accused has ravished her. No unnaturality, improbability and material contradiction in her oath statement was shown on behalf of the accused Appellant. PW-2 Avatar, whose name appears in the First Information Report has supported her version of the prosecutrix upto this extent that on her hue and cry when he reached on the spot, she saw that accused was in the process of escaping from there and prosecutrix was coming behind him and she was weeping at that time. On inquiry, she had stated that she was ravished by the accused. u/s 6 of the Evidence Act, it is provided that facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. In the present case what stated by her to Avatar immediately after the occurrence near the place of occurrence is the relevant fact and the statement of Avatar can be taken into consideration in support of the statement of prosecutrix PW-1 in the facts and circumstances of the case.

Learned Counsel for the Appellant argued that as per prosecution case, occurrence took place on 13.06.1990 at about 12''O clock in the day but the FIR of the same was lodged on 15.06.1990 with a great delay. Learned AGA rebut this argument saying that this argument was dealt by the learned trial court in detailed and held that delay in lodging the FIR in the matter is not materially in the facts and circumstances of the case. She had stated that her husband was out of village and she sent a person to call him and when he came only then they went to lodge the FIR.

In 2005 Supreme Court Cases (Criminal) 410 Sri Narayan Shah v. State, Hon''ble Apex Court held that mere delay in lodging the FIR is really of no consequence if the reason is explained. Learned AGA further argued that in such type of offences initially married lady husband generally remain reluctant to report the matter to the police to save shame and prestige of his family but when lady press him to lodge a report as her life prestige is also involved in the matter and she felt ashamed from the act of the accused as already she had uttered about the occurrence to the witnesses only then if report was lodged at the police station with some delay, it will not affect the merit of the case. In the facts and circumstances of the case and also taking into consideration how the learned trial court has dealt this issue in the impugned judgment and order, I am also of the view that this delay is not a material and on oath statement of the prosecutrix can be disbelieved. Delay in lodging the report does not necessarily indicate that version of the victim is false.

Another argument raised on behalf of the accused Appellant that medical evidence do not corroborate the alleged forced sexual intercourse by the accused with the prosecutrix. It is correct that medical evidence does not support the facts that rape was committed on the prosecutrix but from the facts of the case, it reveals that FIR of the case was lodged after two days and her examination took place thereafter. By lapse of time, there will be some sign on her body to support the case of the rape, it is not probable. Accused had used to force for committing rape on her, as per her case, he put her Dhoti in her mouth and not permitted her to raise alarm. She was only of the age of 19 years at the time of occurrence while the accused was a young man of the age of about 30 years. After taking her in his grip and as she was all alone at the place of occurrence if no mark of injuries on her body was found by the Doctor, it will be of no consequence in the matter.

In (2008) 2 SCC 253, Hon''ble Apex Court laid down that if oral testimony of the prosecutrix found to be cogent, reliable, conveniencing and trustworthy and her evidence stood corroborated by other P Ws and narration of the event in the FIR, no interference with the conviction order passed by the trial court is required in the matter. In the case before the Hon''ble Apex Court also conviction of the accused was based solely on the oral evidence of the prosecutrix and her subsequent conduct. Medical examination of prosecutrix not disclosing evidence of sexual intercourse and there was no injury mark on the body of the prosecutrix.

Learned Counsel for the Appellant had drawn my attention of some discrepancies contradiction in the statement of prosecutrix with other evidence. The statement of the prosecutrix was recorded after lapse of time about three years. Such type of discrepancies and contradiction are natural after lapse of such a long time in the statement of the witnesses. If these are not there witness can be blamed that he was tutored witnesses. Only broad feature of the case are to be seen in the trial of the accused in such type of the offences, so the oath statement of the prosecutrix cannot be disbelieved on this ground also.

As per defence case witness Avatar took out some mustered plants from his fields so he has beaten him, only due to this reason he has been falsely implicated in this case. How this Avatar related to the prosecutrix and her husband so that they became ready after involving the prestige of their family, in such type of case, it is not explained on behalf of the accused. Without their any enmity they will falsely involve. Appellant in such type of case is not believable. Learned trial court has referred the law laid dawn by the Hon''ble Apex Court Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, and had dealt with this argument also when it was raised before him and rightly held that the case of rape is fully made out against the accused from the evidence available on the record. I am also of the view that no cause of interference to this Court is there to interfere in the finding of the trial court wherein trial court held guilty to the accused-Appellant for the offence u/s 376 IPC. Appeal is without merit.

Learned Counsel for the Appellant argued that accused-Appellant already remained in jail for a long period, lenient view be taken in the matter in awarding sentence to him. A report was called from C.J.M. of district concerned showing that accused has misused liberty of interim bail.

Seeing the facts and circumstances of the case and act of the Appellant-accused, I am of the view that no lenient view is required in the matter in awarding the sentence. Appeal has no force and liable to be dismissed. Accordingly, appeal is hereby dismissed.

Accused-Appellant is already in jail. He will serve out the sentence awarded to him by the court below. Period already undergone by him will be taken into consideration by the jail authorities. If needed, jail authorities may obtain the warrant of sentence from the court concerned.