Nand Ram vs State Of U.P.

Hon'Ble Abdul Shahid, J.

Heard Sri Bal Krishna Yadav, learned counsel assisted by Sri Shivam Yadav, learned counsel for the appellant and the learned AGA for the State.

The present criminal appeal has been preferred against the judgment and order dated 22.3.1983, passed by learned District and Sessions Judge, Bareilly in Sessions Trial No. 190 of 1982 (State Vs. Nand Ram), convicting the appellant under Section 376 IPC and sentencing him to undergo five years RI.

Learned counsel for the appellant has submitted that the alleged incident took place on 7.11.1981 around 6.00 pm and the FIR has been lodged with delay on 8.11.1981 around 13.30 hours. The appellant is the sole accused in the said case.

The victim is approximately 11 years of age as per her ossification test. Sukhi, PW-1, who is father of the victim, has recorded his statement as PW-1. The statement of the victim was recorded on 16.2.1983, where, her age was recorded as 10 years.

Babu Khan, PW-4, who is alleged to be an eye witness of the incident. He has turned hostile. PW-5, Chhoti is the sister of the victim. She is younger to the victim and she is a child witness. Surya Prasad Mishra has recorded his statement as PW-6. He is the Investigating Officer of the case. Dr. Rashmi Goel, has recorded her statement as PW-3, and she had medically examined the victim.

Learned counsel for the appellant has further submitted that the victim and her younger sister, both are child witnesses and they can easily be tutored. He has further submitted that the accused is presently approximately 65 years of age and he has already passed 11 months in jail out of the sentence awarded for five years. He has further submitted that there is no reliable and convincing evidence in support of the prosecution story and the impugned judgment and order is liable to be set aside and the criminal appeal is liable to be allowed.

On the other hand, learned AGA has submitted that the offence is of serious and grievous nature. The victim and her sister have proved the offence committed by the appellant. Both have specifically named the appellant and recorded their evidence against the sole accused-Nand Ram that he has committed said offence. The medical examination of the victim has categorically supported the prosecution story. Therefore, the criminal appeal is liable to be dismissed.

The genesis of the present case has been arose on the basis of complaint/FIR viz. check FIR Ext. Ka-1, which is registered as Case Crime No. 172 of 1981, under Section 376 IPC. The complainant has stated that my name is Sukkhi Baksh, son of Imam Baksh, I am a resident of the area of this police station. Yesterday, on 7.11.81, Saturday, I went with my buffalo to Mahadeva Nakhasa to sell it. At about 7:00 p.m., after selling my buffalo, when I reached home, my daughter/victim, aged about 9 years, and my younger daughter, aged about 6 years, told me that both had gone at about 4:00 p.m. to cut grass in our paddy field. The victim had a sickle (hasiya) and the younger girl had a small spade (khurpi). Both girls were cutting grass near the pond when, at about 6:00 p.m., Nandram, came from the side of our paddy field. He hit my younger daughter with a thin stick and told her to go home. Nandram Kurmi caught hold of my daughter/victim, pulled her, and took her to the nearby paddy field of Toti, who is of my village. He opened the string (nara) of my daughter's salwar, laid the girl down in the paddy field and forcibly put his private part into the private part of my daughter. The girl cried and shouted, and the younger girl also raised an alarm. On hearing their cries and shouts, Jhabbu, son of Mangli Baksh Dhuna, Babushah, son of Maiku Shah, Natthu Baksh, son of Khairati Baksh, and Ram Bharose, Baretha village, came running there. They saw Nandram committing bad act with my daughter/victim. Nandram got up from my daughter, tied his 'pajama' and ran away towards the field of Roop Lal Kurmi. They chased him, but could not catch him. As it became late at night and the Kailash River was on the way, he could not go to the police station. Now, I have come to lodge this report along with my daughter. Kindly take legal action. The report was read over to me. It is correct. Whatever, I stated has been written. After hearing it, I put my thumb impression.

There is specific allegation made by the complainant on the sole appellant/accused, Nand Ram. The delay in lodging the FIR is reasonable and plausible and has been explained by the complainant.

The medical examination of the victim took place on 9.11.1981 at 1:00 pm at Dufferin Hospital, Bareilly, which is verified as Ext. Ka-2. In her physical examination, no mark of injury seen on the body. As per vagina examination, hymen was found torn at 3,6 and 10 O'clock positions. The torn edges of hymen are red, swollen and painful, they bleed on touch. A very small tear about 3-4 mm is seen in fourchette. Vagina admits one finger easily. No other mark of injury seen. Vaginal swab sent for pathological examination for the presence of sperms.

The ossification and radiological test were also conducted, which report is verified as Ext. Ka-4 and it is concluded that there is injury on hymen which has been caused by some blunt object and it is about two days old. The X-ray report is dated 12.11.1981, the age of the girl was shown as 11 years on the basis of physical as well as radiological report. The victim is minor aged about 11 years as per ossification test and she has suffered internal injury as mentioned herein above in Ext. Ka-2 and Ext. ka-4.

After complete investigation, the charge sheet has been filed against the appellant under Section 376 IPC and the trial has commenced against the appellant-Nand Ram.

PW-1 Sukkhi, who is father of the victim has stated in his examination-in-chief, which was recorded on 16.2.1983 that the incident is approximately one and 1/4 years ago, it was day of Saturday. I had went to Nakhasha to sell my buffalo. I had returned around 7.00 pm to my house, then I have been informed by my both daughters that they had gone to cut gross in the field, where Nand Ram came and hit with a stick to younger daughter and told her to ran away from the place. He took the victim to paddy field. He had broken 'Nara' of Salwar of the victim and committed bad act with her.

Learned counsel for the appellant has submitted that in the FIR, the complainant has stated that the appellant had opened the 'Nara' of Salwar of the victim and now, it is the case of prosecution that he broken the 'Nara'. It is a minor discrepancy, it does not go to the root of the matter. The minor contradiction has no significance unless it hits the root of the matter.

PW-1 has specifically stated that due to dark evening and there was river in between, hence, he was unable to go to the police station yesterday and on the next day, he visited to the police station alongwith the victim. He narrated the incident to Darogaji and got registered the report. Darogaji had read over the report to him. Whatever he dictated, that was written. He stated that I had put my thumb impression on it. He has verified it as Ext. ka-1. The 'salwar' of victim was taken at the police station and memo was prepared. The age of the victim was 9 years at the time of incident. It is belied to state that with the collusion of the Inspector, I had filed false report and falsely implicated the accused in the said case.

PW-2, the victim has recorded her statement on 16.2.1983. Learned trial court has understood her mental capability of understanding and held that she is able to give evidence. It is absolutely clear that the victim was minor at the time of alleged incident. She stated in her examination-in-chief that the incident is approximately one year ago, my father had went to Nakhasa with buffalo. Myself and my younger sister went to jungle to cut grass. I was having 'Hasiya' and younger sister was having 'Khurpi'. We both were cutting grass. It was approximately prior to sun set. After seeing to the accused, she told that he is the same person, who came on small pond and his name is Nand Ram. He hit to my younger sister with a stick, but he did not spoke with her. Thereafter, he holded myself and took myself in paddy field of Toti. Thereafter, he opened my 'Nara' of salwar in the paddy field of Toti and thereafter he sit down over myself. There has been specific question asked whether he has inserted his private part into your private part. She answered that Nand Ram had inserted his private part into my private part. She further stated that myself and my sister raised voices and on that voices, Natthu, Babu, Ram Bharosey and Jhabbu came there. After their arrival, Nand Ram fled away towards fields of Roop Lal.

In her cross-examination, she has specifically deposed that when sun was almost to set, at that time I had went to cut the grass. My mother was not went with ourselves. We both were cutting the grass. At the same time, Nand Ram came. It is correct that when we were tied that grass, at the same time, Nand Ram reached at that place. We both were having 'Hasiya' and 'Khurpi' in their respective hands. We have tied our grass in the field of Toti. Nand Ram had caught myself. I had not seen Nand Ram prior to the said incident. I am not conversant with Nand Ram prior to the incident. Nand Ram had committed bad act with myself and thereafter he fled away. Nand Ram is resident of Rampura, where I am also resident. Natthu, Jhabbu, Babu and Ram Bharosey had seen Nand Ram while he was fleeing away. These persons told me the name of Nand Ram. Prior to said incident, I do not know the name of Nand Ram. It is belied to state that Nand Ram has not committed any bad act with myself. I had recorded my statement to the Inspector. It is belied to state that no incident was happened with myself. It is also belied to state that on the instigation of my father and police personnel, I am recording my deposition against Nand Ram.

The victim is minor aged 10 years. She has supported the entire prosecution story. She has deposed her statement specifically against appellant/Nand Ram. She has identified him and proved the prosecution story.

PW-3 is Dr. Rashmi Goyal, who had conducted the medical examination of the victim in District Hospital, Bareilly. She recorded her statement on 18.2.1983 before the learned trial court. She has stated that on 9.11.1981, she has conducted the medical examination of the victim as a rape case. The constable-1159 Ichchan Miyan had brought the victim. She has stated that there was no mark of injury on her body. On her internal examination, she found hymen 3,6 and 10 O'clock position. Torn edges of hymen was red, swelling and painful. Blood was oozed out after touching them.About 3,4 mm tear was also found at fourchette. She has verified her examination report as Ext. Ka-2. She has also identified the victim and deposed in court room that she has conducted the medical examination of the victim, who is present in court. She has verified the medical examination of the victim as well as victim. She has stated that she has found X-ray plate on 14.11.1981 of dated 12.11.1981 bearing no. 5581 which is brought myself today. I am filing X-ray plate which is Ext. Ka-1. The X-ray report is in the hand writing of Dr. S.K. Tiwari. I had seen him by writing and signing. I identify his writing and signature which was exhibited as Ext. Ka-3.

She further stated that after seeing this X-ray plate, she has also prepared the report, her right elbow bone was not fused. Her right wrist were not fused. The ossific center was not appeared in pisiform bone. She has verified that her injury of hymen may be caused by some blunt object and it is of around two days old. My meaning of blunt object is with male organ (penis). Said injury on hymen, may be of at 6.00 pm on 7.11.1981. At the time of medical examination, the age of the victim may be of 11 years. She has also verified her supplementary report as Ext. ka-4. She has verified the age of the victim as per ossification test and also verified injuries which was suffered to the victim. She has specifically stated that injury on hymen is caused by some blunt object and her means about blunt object is male organ (penis). It corroborated the story of prosecution with the statement of PW-1, father of the victim and victim herself/PW-2.

The oral evidence as well as medical evidence are corroborating with each other. In her cross-examination, she has stated that I had opined her age on the basis of examination of X-ray plate and after seeing the body of the victim. She has stated that the victim was not before him on 14.11.1981, but she was before her on 9.11.1981. She has written about her body structure. She stated that no definite opinion about rape could be given because injury of hymen may be of prior to the incident, it may also be caused by blunt object, hence I had not given any specific opinion about rape. No spermatozoa was found in the report. I had specified that my meaning of blunt object is with male organ (penis). The male organ is also included in blunt object.

The nature of the injury was found to the victim at the time of medical examination, it may be caused due to the injury of bat of Hasiya and Khurpi. It is belied to state that age of the victim was 12 years at the time of incident, but it is correct that her age is more than 11 and half years. Time of injury may be of one or three days. The inspector has enquired myself about said incident. I had replied to him that I could not give any specific opinion about rape.

The rape is a legal term. The medical examination report would give report about nature of injury and its possible causes. The nature of injury as stated by the prosecution with oral witnesses and medical evidences corroborating to each other that rape has been committed with the victim.

PW-4 is Babu Khan. He has not supported the prosecution story. He has stated that one and 1 1/4 years ago, it was around 5-7 pm. I went to market. I had not seen any incident. I had heard noise. I had not given any statement to the Inspector. When statement under Section 161 Cr.P.C. was read over to this witness, he told that I had not given any such type of statement to the Inspector. I could not give any reason why this statement has been recorded. He stated that I am 'fakeer muslim' and the accused Nand Ram is Kurmi community. In my village there are most of the kurmi population. They are influential. It is belied to state that I am recording false evidence due to their pressure and fear. It could not be ruled out that he has recorded the statement under the fear and pressure of larger members of community in the said village.

In his cross-examination, he has stated that Chhadmi Lal Kurmi of my village is came today. I had no conversation with him. I am not aware that what is the age of the accused. He is the sole son of his father. He is having one sister. The father of the accused is handicapped. He did not come today. I am not aware that small pond is of Gram Sabha. I am also unable to provide detail of boundaries.

The younger sister of the victim has recorded her statement as PW-5 on 18.2.1983. At the time of recording of her statement, she was assessed as approximately 9 years of age. Learned trial court has examined her regarding her understanding nature of her statement and evidence and has recorded his satisfaction that she is able to understand the nature of her statement and she has been recording her statement.

She stated that I am 'dhuna muslim'. There are 3-4 houses of my 'dhuna muslim' in my village. Myself and my sister/victim had went to cut the grass. We were cutting the grass on the small pond. At that time one hour was left to sun set. The accused Nand Ram came on the small pond and he hit to myself with a stick and told that you may go to home. He has hold arm of my sister/victim and caught her and thereafter took her to the paddy field of Toti. He had opened 'salwar' of my sister and sat down over her. I was standing over there and weeping. I had not went away from the spot. On raising alarm of myself and victim, Babu, Jhabbu, Ram Bharosey and Natthu came there then Nand Ram fled away towards field of Roop Lal.

In her cross-examination, she has stated that she is not aware that how many hours are between morning to evening. The statement of my sister was recorded day before yesterday. I was come with her. It is belied to state that we were staying at Bareilly since day before yesterday, but we went to our village and now we came today at Bareilly.

She has stated that day before yesterday, the advocate and police had told to myself that you have to give statement as we have stated to you. They have also told this statement to my sister/victim. They also told to my father same things as dictated by the police you have to record that statement. My father has also told to the victim about same things. The police and Advocate had also told me the talk of day before yesterday. Today also whatever has been stated to myself, I am giving statement. I know the aforesaid witnesses prior to the incident. I had never went to the house of witnesses and Nand Ram. The police personnel had told me that you should take the name of witnesses, Jhabbu, Natthu, Babu and Ram Bharosey and also told that you should take name of accused Nand Ram, hence I took the name of all the five persons. I do not know the name of brother and sister of witnesses. I do not know any relation of Nand Ram. I only used to visit to the houses of my 'biradari'. I do not know other members of the village. I do not go to their houses. The police personnel had also shown me Nand Ram today and the police had told to me that you should identify him that he is Nand Ram and they also told that the case is also running against him. I used to see Nand Ram daily in the village. My father told me that you should see the accused person, you have to give statement against him. My father has shown Nand Ram to me much more prior and stated that the case is also made on this Nand Ram. Prior to identifying by my father to Nand Ram, I had never seen Nand Ram in my village. I had seen agricultural field of Toti, but whatever is its direction, I do not know. My father had shown me agricultural field of Toti. I am aware about agricultural field prior to the case. I do not know that which are the adjoining field to the field of Roop Lal. I do not know, which field is adjoining to small pond. I could not tell that for how many time, I am standing in the court room. The statement which I had recorded about hitting myself with thin stick that was told to me by my father. As my father has stated me I had recorded my statement today. I had not recorded my statement on my own.

She is younger sister of the victim and is alleged to be an eye witness of this incident, but she has stated that she had not recorded her statement on her own. She has recorded the statement whatever has been tutored to her by her father and the police personnel. She also supported the prosecution story in her examination-in-chief. She never denied this fact, that Nand Ram accused had not committed rape with her sister.

PW-6 is Surya Prasad Mishra. He was the Investigating Officer. He stated that he was posted as Sub-Inspector at the concerned police station in 1981. He has verified the check report Ext. Ka-1, that was in the hand writing of constable Jagdish Singh and signed by him. He is well aware of signature and handing writing of him. He was posted with myself. I had saw him writing as well as signing. He had opened the case at Rapat no. 16 at 16.30 hours on the same day. The original G.D. is before myself which is also in the hand writing of Jagdish Singh which is Ext. Ka-5. I had got the investigation of the case. I had recorded the statement of the complainant, Sukkhi Bux, victim, Chhoti, Jhabbu, Babu, Natthu Bux and inspected the place of incident. I had also prepared the site plan which is correct, which is in my handwriting and my signature, which is verified as Ext. ka-6.

The Investigating Officer further stated that I had recorded the statement of witness Babu which is mentioned in the case diary, the original case diary is before me. He has submitted the true copy of that statement and verified as Ext. Ka-7. He has stated that after investigation of the case, on 30.11.1981 he has filed charge sheet against the accused and verified it as Ext. Ka-8.

In the cross-examination, he has stated that he had read the FIR prior to initiation of the investigation, by which it appears that the victim and her sister had went to the field to cut the grass. I had prepared the site plan on the identification of the complainant and witnesses. I had not mentioned the name of witnesses, but mentioned the name of complainant and his daughter. I had not found the agricultural field of the complainant nearby to the place of incident. I had also not found that place, where the girls had cut the grass. There is agricultural field of Shyam Baran in between the small pond and place of incident. It is belied to state that I had not visited the place of incident, but on the saying of witnesses, I had prepared false site plan at the police station. The case was registered in my absence. The victim had told the name of witnesses. It is belied to state that the victim had told me the time of 4.00 pm, but she has told me the time of 6.00 pm of the incident. It is belied to state that the victim has told me about sun set of that day. I had not asked with the girls whether you could identify the accused or not. Whatever told by the girls, I had recorded in their statements. Both girls were appeared to be 8 and 9 years. It is belied to state that during investigation, I had not enquired whether girls could identify the accused person or not. I had assessed the mental ability of the girls at the time of recording of their statements. It is belied to state that the report has been registered at the police station with consultation of the police. It is also belied to state that I had recorded the statement of witnesses at the police station falsely. It is belied to state that I had completed false proceedings to get success in the complaint.

In defence, the statement of accused Nand Ram has been recorded under Section 313 Cr.P.C. He had denied all the allegations and evidences made against him by the witnesses. He has specifically stated that the case has been proceedings against him due to enmity and the witnesses have also recorded their statement against him due to enmity.

In his additional statement, he has stated that Sukhi is the man of Siya Ram. The water of Sukkhi is crossing through my agricultural field. Siya Ram wants to take my 'gonda', hence Siya Ram colluded with police and registered this false case against myself. I do not want to give any defence evidence.

From the record, it is evident that the appellant, Nand Ram, has challenged the judgment and order dated 22.3.1983, passed by the learned District and Sessions Judge, Bareilly, in Sessions Trial No. 190 of 1982, whereby he was convicted under Section 376 IPC and sentenced to five years of rigorous imprisonment (RI). The primary grounds urged by the appellant revolve around the delay in lodging the First Information Report (FIR), alleged contradictions in the statements regarding the loosening/breaking of the 'nara' of the victim's 'salwar', the hostility of an independent eyewitness (PW-4 Babu Khan), and claims of tutoring concerning the child witnesses.

The medical evidence on record is exceptionally clinching. Dr. Rashmi Goel (PW-3), who medically examined the victim on 9.11.1981, noted that the hymen was torn at the 3, 6, and O'clock positions, with fresh, red, swollen, and bleeding edges, alongside a 3-4 mm tear in the fourchette. The radiological and ossification test (Ext. Ka-4) established the age of the victim to be approximately 11 years, confirming her minority. Dr. Goel categorically stated that these internal injuries were caused by a blunt object, specifically defining it as a male organ (penis). This medical finding provides direct, objective corroboration to the ocular testimony of the victim.

The victim, a minor girl of tender years, deposed before the trial court as PW-2. The trial court meticulously assessed her mental capacity and competence to testify prior to recording her statement. In her deposition, she vividly and consistently narrated how the appellant hit her younger sister with a stick, dragged her into the nearby paddy field of Toti, untied/broke the nara of her salwar, and forcibly committed rape upon her. Despite rigorous cross-examination, her core testimony regarding the identity of the sole accused and the sequence of assault remained unshaken.

The incident occurred on 7.11.1981 around 6:00 PM, while the FIR was registered on 8.11.1981 at 13.30 hours. The complainant (PW-1, the victim's father) provided a natural and plausible explanation for this delay; upon returning home late after selling his buffalo, he learnt of the harrowing incident from his daughters. By that time it was dark, and the Kailash River lay on the route, making immediate travel to the police station impossible at night. Such a delay is neither fatal nor indicative of fabrication; rather, it reflects natural human conduct under rural circumstances.

It is held by the Supreme Court in Animireddy Venkata Ramana and others Vs. Public Prosecutor, High Court of Andhra Pradesh; 2008(2) SCC (Crl) 600 that FIR need not be encyclopedic. Each and every detail need not be stated. It is also held by the Supreme Court in Vishwasnathan and other Vs. State of Tamil Nadu; (2008) 2 SCC (Cri) 593 that delay in lodging the FIR, offence under Section 376(2)(g) IPC-prosecution case, held should not be thrown out only on the ground of delay in lodging the FIR.

The minor variance pointed out by the defense—that the FIR mentions the appellant "opened" the nara of the salwar whereas oral testimony states he "broke" it—is a trivial linguistic discrepancy. It does not touch the root of the prosecution case or create any dent in the foundational narrative of sexual assault.

It is held by the Supreme Court in Mani @ Udattu Mani and other Vs. State, represented by Inspector of Police; 2009 (67) ACC 526 (SC) that it is the duty of the court to separate chaff from grain. The evidence not to be disregarded in all respect. Part of evidence found worthy of acceptance, may be used for conviction of the accused.

While PW-5 (the victim's younger sister) exhibited some vulnerability during cross-examination regarding external coaching, the law is well-settled that the testimony of a child witness must be read contextually. Even discounting portions of PW-5's testimony, the primary testimony of the victim (PW-2) stands on a solid, independent footing, fully reinforced by unimpeachable medical evidence (PW-3) and the prompt initial disclosure made to her father (PW-1).

The vague defence plea that the appellant has been falsely implicated due to civil/land disputes or village politics lacks substantive proof. A rustic family belonging to a marginalized background would not stake the honour and future of their minor daughter merely to facilitate a land vendetta.

The prosecution has successfully established the guilt of the appellant beyond reasonable doubt through a harmonious blend of reliable ocular testimony and concrete medical proof. The offence committed against an 11-year-old child is grave, heinous, and antisocial, leaving deep physical and psychological scars.

It is held by the Supreme Court in State of Haryana Vs. Chandvir and other; 1996 SCC (Cri) 728 that the court has to endeavour to separate the grain from the chaff and accept that part of the evidence which is found to be truthful and consistent. It is held by the Supreme Court in State of U.P. Vs. Chhotey Lal; AIR 2011 SC 697 in case of Section 376 IPC, as per section 3 and 133 of Evidence Act, the evidence of prosecutrix in rape cases, the woman, who is victim of sexual assault is not accomplice to crime. Her evidence cannot be tested with suspicion as that of an accomplice. The evidence of prosecutrix is similar to the evidence of injured/complainant or witness. The testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecution of rape, the law does not require corroboration.

Given the fact that the appellant has already served a portion of his sentence and is currently advanced in age, these aspects were open for consideration only regarding sentencing the appellant; however, looking at the heinous nature of the crime, the sentence of five years rigorous imprisonment awarded by the trial court is already lenient and proportionate.

Accordingly, the judgment and order of conviction and sentence dated 22.3.1983, passed by the learned District and Sessions Judge, Bareilly, is hereby confirmed.

The criminal appeal is dismissed. The appellant, is on bail. He shall surrender forthwith to serve out the remaining period of his sentence as awarded by the learned trial court. His bail bonds is cancelled and sureties stands discharged.

Let a copy of this judgment be sent to the learned trial court, who shall complete the necessary formalities. The appellant shall undergo the remaining sentence awarded by the learned trial court. The period of incarceration already undergone by him, if any, shall be adjusted against the sentence in accordance with law.