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A.F.R.

Judgement Reserved On 24.09.2019

Judgement Delivered On 18.12.2019

Court No. - 46

Case :- CRIMINAL APPEAL No. - 5375 of 2010

Appellant :- Surendra

Respondent :- State Of U.P.

Counsel for Appellant :- Sanjiv Singh,Animesh Chatterjee,Apul

Mishra,Ashok Kumar Tripathi,Chetan Chatterjee,Namwar Singh,Yogesh

Kumar Srivastava

Counsel for Respondent :- Govt. Advocate

Hon'ble Naheed Ara Moonis,J.

Hon'ble Anil Kumar-IX,J.

(Delivered by Anil Kumar-IX,J.)

1. This criminal appeal has been filed against the judgement and order

dated 20.09.2003 passed by Additional Session Judge (Fast Track) Court No.

14, Mathura in Session Trial No. 972 of 2002, (State Vs. Surendra) arising

out of Case Crime No. 223 of 2002, under Section 376 I.P.C., Police Station

Raya, District Mathura, whereby sole appellant Surendra has been convicted

and sentenced to life imprisonment with fine of Rs. 5,000/- under Section

376 I.P.C., with default stipulation.

2. Prosecution case in brief is that the informant Chandra Pal has lodged first

information report on 05.02.2002 at 01.15 P.M. at P.S. Raya, District Mathura

alleging therein that on 05.02.2002 at about 12.00 noon he was going

towards Raya from his village Gonga. At about 12.30 P.M. when he reached

near the field of Charan Singh, on hearing the shrieks of a child from the

field of Charan Singh, he stopped there and went to that field. When he

reached there, he saw that appellant/accused was committing rape on an

innocent girl child of about 2-½ to 3 years. There was blood on the spot and

the child was lying in a pool of blood. At that moment, Murari s/o Masi,

Pappu s/o Bagari both resident of village Gonga and Jagveer s/o of Nekse

resident of Dhaku also reached there. Seeing them, the accused/appellant

tried to escape from there but they caught him on the spot after applying

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some force. The victim was in very serious condition. There were injuries

with blood on private part of the victim. On being asked accused/appellant

told his name as Surendra s/o Shanker Singh Bhat @ Sunil Bhati resident of

Gokleshwar, District Dharchula (Nepal). Some persons living on the side of

the road near the railway station told them the name and father's name of the

victim and also told them that her parents were searching her for a long time.

The informant Chandra Pal along with other persons brought the victim and

the accused/appellant to the Police Station Raya and lodged the first

information report by giving his written report Ext. Ka-1 which was scribed

by Rakesh Bansal s/o Kishan Lal Bansal resident of Hathras road Raya,

Mathura. The entry was made in general diary (G.D.) of Police Station vide

Report No.20 at 13.15 hours on 05.02.2002 by Sri Vijay Singh (PW 4) and

investigation was handed over to PW 5, Sub-Inspector Indra Pal Singh

Tomar.

3. After registration of the first information report at Police Station the

victim was sent to the government hospital with lady Constable Sushma of

P.S. Raya for her treatment and medical examination. She was medically

examined on 05.02.2002 by Dr. Sunita Majumdar Medical Officer Women

Hospital, Agra and prepared injury report (Ext. Ka-6).

According to the injury report Ext. Ka-6 she was of average built, weak

condition pulse 110 per minute, there was no mark of injury anywhere on the

external body surface. In internal examination, vagina admits little finger

easily. Vagina smear prepared and sent for pathological examination.

Injuries noted are as follows:

(i)Left lateral vaginal tear at 5 o' clock position 1cm in length, breath 0.3

MM,muscle deep bleeding present. This tear was stitched bleeding on this side

was controlled.

(ii) Right lateral vaginal tear at 7 o' clock position

(a) Skin tear externally 1.5cm x 0.3cm

(b) muscle deep extending internally (apex could not traced) bleeding present

tight vaginal packing done duration of injuries 1 and 2 about 6 hours.

Victim was advised to admit in district female hospital for examination of

injuries and primary T/T Sedation, X-ray of right wrist including carpels and

right elbow for age determination, vaginal smear for pathological

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examination to ascertain the presence of spermatozoa and spermatic fluid,

victim was referred to S.N. Medical College, Agra for the repair and further

T/T of injury no.2 which could not be stitched due to lack of proper pediatric

anesthesia. There was no other medical examination report or x-ray report of

the victim on record as was advised by the doctor.

4. On request letter dated 05.02.2002 of Station Officer P.S. Raya, accused

appellant was also medically examined by Dr. B.P. Sarswat Medical Officer

District Hospital Mathura on the same day at 3:00 PM. The medical

examination report exhibited as Ext. Kha-6.

According to the medical examination report Ext. Ka-6 accused/appellant

Surendra was brought by Constable Santosh Kumar and Sahadat Police

Station Raya. He was examined on 05.02.2002 at 3:00 P.M. According to the

report he was young healthy man of about 25 years well built and well

nourished. The following injuries were found on his body.

(i) multiple abrasion in an area of 16 cm x 6 cm in front of left knee and

upper front of left leg size varying from 2 cm x 1 cm to 1 cm x 0.5 cm.

(ii) Abrasion 2 cm x 1 cm on medial aspect of right knee joint.

(iii) Abrasion 2 cm x 1 cm on front of right leg middle part.

(iv) External clothes pant and shirt were not teared except on the cuff of the

shirt was having blood stained, under garments also having blood stains on

both underwear. His clothes were sealed and handed over to the Constable

for examination by forensic expert for necessary examination including

blood group.

(v) Finger nails scrapped also collected and preserved sealed along with

clothes for examination by forensic expert.

(vi) He was not under influence of alcohal or any other thing.

(vii) There was no wetting of pubic hairs but pubic hairs sample taken and

sent to forensic expert.

(viii) There were no female hair on his body.

(ix) There was slight redness on glans and prepuce but no external injury on

penis.

(x) Genital part was fully developed and he was a young person and can do

sexual acts.

(xi) There was no smacma (white layer) around the glans penis and there

was no gonorrheal discharge on genital organs.

In the opinion of doctor injury nos. 1, 2 and 3 were fresh, simple and caused

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by friction.

Two underwears, one cuff of shirt and finger nails scrapping and pubic hair

sealed and handed over to accompanying Police Constable for examination

by forensic expert.

5. After the registration of F.I.R. at the police station, Investigating Officer

Indrapal Singh Tomar started investigation on 05.02.2002. He recorded

statement of Head Constable Vijay Singh, who had registered the F.I.R. on

the basis of written report of the informant. He has recorded statement of

informant Chandra Pal on 05.02.2002 and he copied medical examination

reports of the victim and the accused in the case diary on 06.02.2002. He

inspected the spot on the pointing out of the informant and prepared site plan

Ext. Ka-4. He had recorded statement of Kallu, father of the victim and

statement of Murari one of the eye witnesses of the incident. On 28.03.2002

Investigating Officer had recorded statement under Section 161 Cr.P.C. of

eye witness Pappu. On 10.04.2002 he recorded statement of eye witness

Jagveer and after completion of investigation he submitted charge sheet Ext.

Ka-5 against accused Surendra under Section 376 I.P.C.

6. As the case was exclusively Triable by the Court of sessions, hence it was

committed to the Court of Sessions and numbered as Session Trial No. 972

of 2002. After that, this session trial was made over to the Court of

Additional Sessions Judge (Fast Track) Court No. 14 Mathura for final trial

and disposal of the case. After hearing of the learned counsel for the

appellant as well as Public Prosecutor, learned Trial Judge has framed the

charge under Section 376 I.P.C., against accused/appellant on 15.01.2003,

which was read over and explained to the accused in Hindi, who pleaded not

guilty and claimed to be tried.

7. After framing of charge prosecution was directed to adduced its evidence

by which it proposes to prove guilt of the accused. The prosecution has

examined as many as five witnesses. The brief sketch of the witnesses

examined by the prosecution is as hereinunder:-

(I)PW 1, Chandra Pal is the informant and eye witness of the

case, he has deposed that on the date of occurrence at about 12.00 noon

he was going to Raya town from his village 'Gonga' and at about 12.30

PM when he reached near the field of Charan Singh, he heard shriek of a

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female child and rushed towards that field. When he reached in the field

of Charan Singh, he saw that a man was committing rape on innocent

child aged about 2-1/2 to 3 years. There was blood on the spot and all

over body of the victim. There were injuries and blood on her private

part. Murari and Pappu, who belonged to the village of this witness also

reached on the spot. When the culprit saw them, he tried to escape but

was caught by them on the spot. He disclosed his name as Surendra s/o

Sunil Bhati, resident of District Gokleshwar (Nepal). The accused was

identified by this witness in the Court room. He further deposed that he

along with other persons brought the victim and the accused to the police

station Raya. When he reached with victim on the road before the

Railway station, the persons living on the side of the road told him the

name of the victim and her father's name and also told that her parents

were searching her since very long time. They also told that the accused

carried her in the field in his lap and committed rape on her. He got the

F.I.R. Scribed by Rakesh Bansal s/o Kishan Lal Bansal resident of Raya

and lodged the F.I.R. on the basis of aforesaid written report which has

been proved by PW 1 as Ext. Ka-1.

PW 1, Chandra Pal was put to a lengthy cross-examination but nothing

adverse could be elicited from him in his cross examination. He has told

the purpose for going from ‘Gonga’ to Raya for marketing at 12.30 P.M.

He was going to Raya town on foot and Murari (PW2) was also with

him.

(ii)PW 2, Murari is an independent eye witness. His statement has

been recorded before the Trial Court on 03.07.2003. He has deposed in

his examination in chief that about 1-½ years ago at about 12 to 12.30

hour he was going to Raya town from the village ‘Gonga’ along with

Chandrapal (PW 1). Behind them Pappu (not examined) was also

coming towards Raya town, when they reached near the field of Charan

Singh situated near Southern cabin of Railways, they heard a loud cry of

a child. On hearing the shriek of the child, they went into the field of

Charan Singh. When they reached there, they saw that accused of the

case Surendra was committing rape on the child. The child was about 2

½ to 3 years old. There was blood on all over her body. Chandrapal

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(PW1) and Pappu (not examined) had also witnessed the incident. The

accused tried to run away from there but was caught by them on the spot.

The accused disclosed his name as Surendra. He was identified by this

witness in the court room. When they were going to the police station

along with the victim and accused for lodging the F.I.R., they saw that

some persons who were residing on the road side were searching the

victim, they identified the victim. Victim and accused were brought to

the police station by Chandra Pal (PW1), Pappu and this witness. The

F.I.R. was lodged by Chandra Pal (PW1), the condition of the victim was

serious, there were injuries on her thigh.

In his detailed cross examination, he has fully supported the contents of

the F.I.R. and statement of PW 1 Chandra Pal.

(iii)PW 3, Kallu is father of the victim. In his examination-in-chief

he has deposed that the occurrence is of about 1-½ years ago. The age of

the victim was 2-1/2 to 3 years. The victim disappeared while playing.

He along with his neighbours were searching her. At about 12.30 PM

victim was brought there (police station) by some person of village

‘Gonga’ P.S. Raya, then he reached there and came to know that the

accused Surendra who was apprehended and brought there by them had

committed rape on her daughter (victim). Those persons told him that

accused was caught by them while he was committing rape on the victim

in the field of Charan Singh. He further deposed that victim sustained

injuries in her private part due to commission of rape on her. Her

condition was very serious and there was blood on all over her clothes.

After registration of F.I.R. victim was sent to District Hospital Mathura

for medical treatment. The victim was brought in the Court below by this

witness at the time of recording his statement. At the time of recording of

the statement of this witness in the Court, the victim was about 4 years

old but was unable to speak properly, some questions were asked by the

Court but the victim could not speak.

(iv)PW 4, Constable Vijay Singh was posted as Head Constable

in the concerned police station at the time of alleged incident. He has

registered this case on the basis of written report and has also made entry

in General Diary (G.D.). In his statement, he has proved concerned G.D.

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report No.20 dated 05.02.2002 at 13.15 hour Ext. Ka-3 and chik F.I.R.

Ext. Ka-2. In his cross examination he has admitted that at some places

in chik F.I.R. there were overwritings and whitenings. He has also stated

that at the time of registration of F.I.R. scribe Rakesh Bansal s/o Kishan

Lal Bansal, witnesses Murari and Pappu, resident of village ‘Gonga’,

Jagveer resident of Dhaku, Mohan Singh Punia resident of Bisawali

along with the victim and accused Surendra were present there. He had

not seen any member of the family of the victim there. Chik F.I.R. was

sent to the Court on next day. There is overwriting at the top of the chik

F.I.R. Ext. Ka-2 and G.D. Ext. Ka-3.

(v)PW 5, Indra Pal Singh Tomar has deposed that on the date of

incident i.e. 05.02.2002, he was posted as Sub-inspector in police station

Raya, F.I.R. was lodged in his presence. He was handed over the

investigation of this case on 05.02.2002 and on that day recorded the

statement of Head Constable Vijay Singh, who had registered F.I.R. of

this case, besides him statement of informant Chandra Pal (PW1) was

also recorded and medical reports were copied in case diary by him. On

06.02.2002, he prepared site plan at the pointing out of the complainant

vide Ext. Ka-4. He recorded the statement of father of the victim Kallu

and witness Murari on the same day, i.e. 28.03.2002. He recorded the

statements of Pappu and Jagveer on 10.04.2002. After investigation, he

has submitted charge sheet in Case Crime No. 223 of 2002, under

Section 376 I.P.C. against the accused Surendra. He has proved the

charge sheet paper no. 4A/2 which is Ext. Ka-5 in the record. In his cross

examination he has stated that victim was not produced before the Court

by him. He had not seen the clothes of the victim, which were worn by

her at the time of incident. He had not taken sample of blood stained and

plain earth from the spot. He had not recorded statement of the doctor.

Statement of father of the victim Kallu was recorded by him on

06.02.2002.

(vi)PW 6, Dr. Sunita Mazumdar has conducted medical

examination of the victim on 05.02.2002 at about 3 PM and has prepared

medical examination report. She has proved injury report of the victim

which is Ext. Ka-6 on the record. She has also stated that she could not

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count the teeth of the victim as she was uncooperative and was weeping

bitterly. She had referred the victim to S.N. Medical College, Agra for

her further treatment as the injuries to her were grievious in nature, but

not mentioned in the report. In her cross examination PW 6, Dr. Sunita

Mazumdar has stated that report of the pathology and radiologist was not

brought before her, therefore, she has not prepared supplementary

medical examination report.

8. After the closure of prosecution evidence the statement of the

accused/appellant Surendra under Section 313 Cr.P.C. was recorded on

01.09.2003. Accused stated that he had been falsely implicated in this case on

the basis of false and fabricated evidence. He further stated that he had come

to Raya in search of work of watchman for himself. The complainant and his

companions assaulted him and falsely implicated in this case after snatching

his money and luggage from him. He demanded opportunity for adducing

evidence in defence.

9. In defence Dr. B.P. Sarswat, who was posted as emergency Medical

Officer in District Hospital Mathura at the time of occurrence was examined

as DW 1. He had conducted medical examination of the accused-appellant

Surendra on 05.02.2002 on request of Station Officer of concerned police

station. In his statement, he has proved medical examination report Ext. Kha-

1 of the accused Surendra.

10. After hearing learned counsel for the parties, scrutinizing and evaluating

the evidence, the learned Trial Court has recorded conviction of the accused

Surendra under Section 376 I.P.C. and passed sentence as already mentioned

in Para 1 of this judgement.

11. Being aggrieved by the judgement and order of the learned Trial Court,

this appeal has been preferred by the accused appellant.

12. We have heard Sri A.K. Tripathi, learned counsel for the appellant and

Sri Ajit Ray, learned A.G.A. appearing on behalf of the State and perused the

entire material on record.

13. Learned counsel for the appellant has mainly raised following points:-

(i) Both the eye witnesses PW 1, Chandra Pal and PW 2, Murari are the

chance witnesses, they are resident of different village “Gonga”. There

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are material contradictions and inconsistencies in the statements of both

the aforesaid witnesses; their testimonies inspire no confidence. PW 3

Kallu, father of the victim is not an eye witness. He happened to reach

there after the alleged incident. In fact the accused/appellant had come to

Raya in search of work of watchman. The complainant and others

snatched his money and luggage and falsely implicated him in this case.

(ii) There are overwritings, cuttings in chik F.I.R., and it was sent to the

concerned Magistrate on next day. The F.I.R., has not been lodged by

the father of the victim. It was prepared after consultation with Police

which creates serious doubt on prosecution version.

(iii) Testimonies of aforesaid witnesses of fact Chandra Pal and Murari

are not supported by the medical evidence. The doctor has not given any

opinion about commission of rape on the victim.

(iv) Bloodstained clothes of the victim and the appellant were not taken

by the I.O., and were not sent to expert for its examination.

(v) Place of occurrence has not been proved, sample of bloodstained and

plain earth has not been collected by the I.O., from the spot.

(vi) Learned counsel for the appellant further contended that learned

Trial court has convicted and sentenced the appellant against the settled

principle of law, hence not sustainable in the eyes law. Learned counsel

for the defence lastly argued that sentence awarded to the appellant is

too severe and harsh. He is already in custody in this offence for about

17-½ years. He is a very poor person. A lenient view be taken keeping

the long detention and background of the appellant.

14. Sri Ajit Ray, learned A.G.A. appearing on behalf of the State has

refuted the arguments advanced by the learned counsel for the appellant

that the first information report is prompt; PW 2 Chandra Pal and PW 3

Murari are independent eye witnesses and they have fully supported the

prosecution version. The appellant was caught by them on the spot. PW

3 Kallu has also supported the prosecution version. Ocular testimonies

are fully corroborated by the medical evidence. He has further

contended that minor contradictions in the statements of witnesses will

not affect the prosecution case. There will be no adverse effect on the

prosecution version by overwriting and whitening as shown in the F.I.R.

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Prosecution case is fully proved by cogent evidence of the independent

eye witnesses supported with medical evidence, therefore, mere defect

in investigation will not be a ground to discard the testimony of the eye

witnesses.

15. Now, we have to scrutinize and consider the reliability of witnesses

of fact examined by the prosecution. The prosecution has examined PW

1, Chandra Pal, PW 2, Murari and PW 3, Kallu as witnesses of fact.

16. PW 1, Chandra Pal stated the purpose of his going to Raya town

from his village ‘Gonga’ and how he reached the spot at the time of

incident he has stated that he himself has seen the accused committing

rape on the victim..

PW 1 is not related to the victim or his father Kallu. He was not even

knowing the father's name of the victim which was told him by the

persons living on the side of the road before railway station. He is not

inimical to the accused. He along with other persons caught the accused

on the spot and handed over to the Police. There is no material

contradiction on any point in his statement. In his lengthy cross-

examination this witness remained firm and reiterated again and again

that he had seen the entire occurrence.

17. PW 2, Murari has deposed in his examination-in-chief and

reiterated in his cross examination that at the time of incident, he has

also reached the spot with Chandrapal (PW1) and had seen that accused

of this case Surendra was committing rape on the victim and he was

apprehended on the spot by them.

PW 2, Murari is not related to the victim or his family members, he has

seen the victim and accused for the first time on the spot. In prompt

F.I.R. Ext. Ka-2 and in statement of PW 1, Chandra Pal his name has

been mentioned as an eye witness of the occurrence. In his statement he

has stated the purpose for going to Raya on that day. PW 4, Constable

Vijay Singh has also stated that this witness was present with the

informant at the time of registration of F.I.R.

18. PW 3, Kallu is father of the victim. He was not an eye witness but

he reached to the Police Station after the occurrence. He has stated that

victim is his daughter and at the time of occurrence her age was 2-1/2 to

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3 years. He has also stated that there was injury on her private part, there

was blood on her body and clothes. Her condition was very critical.

After lodging of F.I.R., victim was sent to District Hospital, Mathura for

treatment. He has also stated that accused was caught and brought to the

Police Station by PW 1, Chandra Pal and PW 2, Murari.

At the time of recording of the statement of PW 3, Kallu in the Court,

the victim was also in his lap. PW 3, Kallu stated that she could not

speak. Some questions were also asked by the Trial Court, but she did

not speak.

19. Learned counsel for the appellant submitted that both the eye

witnesses PW 1, Chandra Pal and PW 2, Murari are of different village

“Gonga” which is about one kilometer from the spot. It is further

submitted that both the aforesaid witnesses are chance witnesses and

their testimonies are not reliable. As regards, their being chance

witnesses there is no doubt, but it is not rule of law that the chance

witnesses cannot be believed. The reason for a chance witnesses being

present on the spot and his testimony requires close scrutiny and if same

is otherwise found reliable, his testimony cannot be discarded merely on

the ground of his being chance witness.

Regarding reliable testimony of chance witnesses, in Sachchey Lal

Tiwari Vs. State of U.P. (2004) 11 Supreme Court Cases 410

Hon'ble Apex Court has held as under:

“Coming to the plea of the accused that PW 2 was a ''chance witness''

who has not explained how he happened to be at the alleged place of

occurrence it has to be noted that the said witness was independent

witness. There was not even a suggestion to the witness that he had

any animosity towards any of the accused. In a murder trial by

describing an independent witness as ''chance witness'' it cannot be

implied thereby that his evidence is suspicious and his presence at the

scene doubtful. Murders are not committed with previous notice to

witnesses - soliciting their presence. If murder is committed in a

dwelling house, the inmates of the house are natural witnesses. If

murder is committed in a street, only passers-by will be witnesses.

Their evidence cannot be brushed aside or viewed with suspicion on

the ground that they are mere ''chance witnesses''. The expression

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''chance witness'' is borrowed from countries where every man's home

is considered his castle and everyone must have an explanation for

his presence elsewhere or in another man's castle. It is quite

unsuitable an expression in a country where people are less formal

and more casual, at any rate in the matter of explaining their

presence. The courts below have scanned the evidence of PW 2 in

great detail and found it to be reliable. We find no reason to differ”.

In Sarvesh Narain Shukla Vs. Daroga Singh And Others (2007)

13 Supreme Court Cases 360; it was held by Hon'ble Apex Court that if

the chance witness has explained his presence by stating that he had gone for

'Darshan' and was on his way back home and Court comes to the conclusion

that testimony of such a chance witness is credible, the evidence cannot be

thrown out merely on the ground that the witness happened to be present by

chance.

In Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh

(1991) 13 SCC 627; it was held by Hon'ble Apex Court that the witness

being a resident of the locality in the vicinity where the occurrence had taken

place, his presence at the market place could not be considered to be

unnatural.

In the instant case PW 1, Chandra Pal and PW 2, Murari, both have explained

their presence on the spot at the time of incident. In his cross-examination

PW 1, Chandra Pal has deposed that he was going from his village “Gonga”

to Raya town for marketing purpose as and he had to purchase sugar, oil,

chillies etc. PW 2 Murari has deposed that he is a driver by profession and

used to drive Jeep, he was going from his village to Jeep Stand Raya for

driving work. Both the aforesaid witnesses are of nearby village “Gonga” and

for their personal work they were going to Raya town on foot on the fateful

day and when they reached near the field of Charan Singh, they heard cries

of the victim and reached on the spot. Thus, both the above witnesses have

given proper explanation of their presence on the spot at the time of incident.

Accused/appellant was also caught and handed over to the police by both the

aforesaid witnesses. Therefore, their presence on the spot at the time of

incident is natural and believable. There is no material contradictions in the

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evidence of the witnesses to doubt their testimony. They were totally

independent witnesses, who had no cause to give false evidence against the

appellant and their evidence is acceptable regarding the time, place and

manner of incident as well as the identity of the accused/appellant.

20. Learned counsel for the appellant submitted that appellant is

resident of 'Nepal' and on the date of occurrence he had come Raya in

search of work of watchman. He further submitted that both the said eye

witnesses PW 1 and PW 2 snatched his money and luggage from him

and implicated him in this false case. The above submission of learned

counsel for the appellant is unbelievable because it has not been

specified anywhere that what luggage and how much money was with

the appellant which was snatched by the witnesses. There is no evidence

of any such kind in support of above submission.

21. PW 1, Chandra Pal and PW 2, Murari are the eye witnesses of the

incident, there is no inconsistency in their statements, they have fully

supported prosecution version, they are not related to the victim, they

had no animus against the accused, hence their testimonies are cogent,

credible and trustworthy.

22. As regards corroboration of ocular testimony with medical

evidence, the victim was medically examined on the same day at 3.00

PM at Government Hospital, Mathura. Medical examination report is

Ext. Ka-6, which has been proved by PW 6, Dr. Sunita Mazumdar. On

private part of victim left lateral vaginal tear and right lateral vaginal

tear were found. Bleeding was also present there. Medical examination

report of the victim thus fully supported the ocular testimonies of PW 1

and PW2. Learned counsel for the defence raised two objections on

medical examination report of the victim. First objection was raised

about inconsistency regarding period of injury and second objection was

raised about the absence of opinion of doctor regarding commission of

rape.

As regards first objection, the occurrence of the incident was at 12.30

PM and victim was medically examined at 3 PM. According to it,

duration of injury was of 2-1/2 hours, in medical examination report

duration of injury is mentioned as 6 hours. Thus, there is difference of 3-

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1/2 hours between the two but in this regard opinion of the doctor

cannot be specified and there may be variation. In examination-in-chief,

PW 6 Dr. Sunita Mazumdar has herself stated that the injury of the

victim may also be of about 12.00 noon on 05.02.2002. It is also

established legal position that if there is difference between reliable

ocular testimony and medical report, ocular testimony shall prevail.

As regards second objection raised by learned counsel for the defence,

though PW 6 Dr. Sunita Mazumdar has not given any opinion about the

commission of rape, but she has proved the injuries on the private part

of the victim, which itself supports the ocular version regarding

commission of rape on the victim.

23. Accused/appellant was also medically examined by the DW 1 Dr.

B.P. Sarswat on 05.02.2002 at 4.25 PM in Government Hospital,

Mathura. The medical examination report is Ext. kha-1 which has been

proved by DW 1, Dr. B.P. Sarswat. According to the injury report Ext.

kha-1, injury nos. 1, 2 and 3 were abrasions on leg and injury no.9 was

slight redness on glans penis of the accused. According to the doctor

(DW 1) above injuries of the accused were due to friction and may be

caused by falling on earth and also by committing rape on hard surface.

Besides above injuries of the appellant, blood stains were also found on

the cuff of the shirt of the accused and also on both the under garments

of the appellant which was handed over to Police Constable by doctor

(DW 1) for examination by the expert but examination report is not

available on record, injury report of the appellant and his blood stained

clothes also corroborate the prosecution version.

24. Learned counsel for the defence submitted that there are whitenings

and overwriting at several places in chik F.I.R., and F.I.R. was sent to

concerned Magistrate after two days from the date of incident which

creates a strong doubt about prosecution version in respect of the alleged

incident. We have perused the original records of this case. According to

the F.I.R., incident occurred at 12.30 PM on 05.02.2002 and F.I.R. was

registered at the concerned Police Station at 01.15 PM, distance of

Police Station from the place of occurrence is 1.5 furlong. From the

above, it emerges that F.I.R. of this case is a prompt F.I.R. In chik F.I.R.

15

there are whitenings at three places and overwriting figure '6' of Section

'376' I.P.C. but there is no such overwriting or whitening on carbon copy

of the concerned G.D., Report No.20, time 13.15 of 05.02.2002, time of

occurrence, time of registration and copy of written report of the

informant transcribed on back of the chik F.I.R. The place where

whitenings or overwriting are made on chik F.I.R. will have no adverse

effect on prosecution version which has been proved by the cogent

testimony of eye witnesses supported by medical evidence.

25. As regards the second objection raised regarding sending the F.I.R.

after two days, the F.I.R. was registered on 05.02.2002, signature of the

Magistrate on it was of 07.02.2002 i.e. after about two days. In this case

F.I.R. was lodged promptly, accused was caught on the spot, victim and

accused were medically examined in government hospital on the same

day. After a few hours of the occurrence on the same day the statement

of the informant was recorded by I.O., therefore, there would not be any

adverse effect in sending the copy of F.I.R. to the concerned Magistrate

after two days. It has been held by Hon'ble Apex Court in Anil Rai

Vs. State of Bihar (2001) 7 SCC 318 that delay in sending the

copy of F.I.R. to the area Magistrate is not material where the F.I.R., is

shown to have been lodged promptly and investigation was started on

that basis.

26. As regards, omission of Investigating Officer to take sample of

bloodstained earth from the spot and bloodstained clothes of the victim

and accused and to send them for forensic examination by expert is

concerned, it is mere slackness, carelessness and fault on the part of I.O.

which stands completely covered by the cogent credible ocular

testimony corroborated by medical evidence and the prosecution version

cannot be disbelieved only on this ground as held by Hon'ble Apex

Court in Maqbul @ Zubir & others Vs. State of U.P., A.I.R.

(2010) SC 762. In the case at hand, in the F.I.R. place of occurrence

was the field of Charan Singh, the Investigating Officer has inspected

the place of occurrence on the next day i.e. on 06.02.2002 at the

pointing of the informant and has prepared site plan Ex ka-4 in which

place of occurrence has been shown at Southern east of field of Charan

16

Singh. PW1 Chandra Pal and PW 2 Murari, both the eye witnesses have

deposed that the incident occurred in the field of Charan Singh. PW 2

Murari has made it more specific by saying that incident occurred near

Southern Cabin of Railway Station in the field of Charan Singh. Thus,

there is no doubt about the place of occurrence which is at South East

part of the field of Charan Singh.

On the basis of discussion made herein above and also considering

material evidence on record, we are of the considered opinion that

findings of conviction for the offence punishable under Section 376

I.P.C. recorded by the learned Trial Court are well substantiated by the

evidence on record. The learned Trial Court has appreciated the

evidence in right perspective. We do not find any justification to

interfere with the findings of conviction recorded against the appellant

under Section 376 I.P.C., therefore, the conviction recorded against the

accused/appellant under Section 376 I.P.C., is hereby affirmed.

Learned counsel for the appellant submitted that punishment awarded to

the appellant is too severe and harsh. It is further argued that appellant is

a poor married person and has two children, nobody is there to look

after them properly. Because of poverty and being resident of 'Nepal'

nobody could do proper pairvi of his case and his appeal was filed after

the delay of 318 days. He is languishing in custody in this offence from

the date of registration of F.I.R. of this case i.e. 05.02.2002 and till now

he has passed more than 17-½ years in jail.

The offence of rape occurs in Chapter XVI of Indian Penal Code. It is an

offence affecting the human body. Rape is defined in Section 375 I.P.C.

and Section 376 speaks about the punishment. Section 375 and Section

376 I.P.C. have been substantially changed by Criminal Law

Amendment Act No.43/1983 and amendment made thereafter by Act

No.13/2013 and Act No.22/2018. In case at hand, the date of incident is

05.02.2002 i.e. after the enforcement of the Act 43/1983 (Criminal Law

Amendment Act 1983). At the time of incident for commission of rape

on woman below 12 years of age the minimum prescribed punishment

was imprisonment for 10 years and maximum punishment was

imprisonment for life and also fine. One proviso was also there that

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Court may, for adequate and special reason mentioned in judgement,

impose sentence less than 10 years. [Section 376 sub section (2)(f)].

Learned Trial Court has awarded maximum prescribed sentence i.e.

imprisonment for life and fine of Rs.5,000/- with default stipulation.

Now, we are considering whether the maximum punishment was

warranted in this case or in the circumstances of the case appellant is

entitled for some leniency. In case before us the age of the victim at the

time of incident was about 2-½ to 3 years, she was not even able to

speak properly as has been mentioned by the trial Court in impugned

judgement. According to DW-1 Dr. B.P. Sarswat, who conducted

medical examination of the accused on 05.02.2002, appellant was

healthy man of 25 years, well built and well nourished. In above

circumstances victim was not in position to resist. Appellant/accused

committed rape on such an innocent child of tender age.

In State of Madhya Pradesh Vs. Santosh Kumar, AIR 2006 SC 2648,

Hon'ble the Apex this Court held that in order to exercise the discretion of

reducing the sentence, the statutory requirement is that the court has to record

adequate and special reasons in the judgement and not fanciful reasons which

would permit the court to impose a sentence less than the prescribed

minimum. The reason has not only to be adequate but also special what is

adequate the special would depend upon several factors and no straitjacket

formal can be indicated.

In Kamal Kishore and others Vs. State of Himachal Pradesh,

AIR 2000 SC 1920, Hon'ble the Apex Court held that the expression

“adequate and special reasons” indicates that it is not enough to have

special reasons, nor adequate reasons disjunctively. There should be a

conjunction of both for enabling the court to invoke the discretion.

Reasons which are general or common in many cases cannot be

regarded as special reasons.

In the case of Mukesh and Anr. vs. State for NCT of Delhi &

others reported in 2018 (8) SCC 149.

Regarding award of sentence Hon'ble the Supreme Court has expressed

view as here under:-

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“Question of awarding sentence is a matter of discretion and has

to be exercised on consideration of circumstances aggravating or

mitigating in the individual cases. The courts are consistently

faced with the situation where they are required to answer the new

challenges and mould the sentence to meet those challenges.

Protection of society and deterring the criminal is the avowed

object of law. It is expected of the courts to operate the sentencing

system as to impose such sentence which reflects the social

conscience of the society. While determining sentence in heinous

crimes, Judges ought to weigh its impact on the society and

impose adequate sentence considering the collective conscience or

society's cry for justice. While considering the imposition of

appropriate punishment, courts should not only keep in view the

rights of the criminal but also the rights of the victim and the

society at large.”

In State of M.P. Vs. Bala alias Balaram, AIR 2005, SC 3567, Hon’ble

Supreme Court, Hon’ble Supreme Court held as under:

“The crime here is rape. It is a particular heinous crime, a crime

against society, a crime against human dignity, one that reduces a

man to an animal. The penal statute has prescribed a maximum

and a minimum punishment for an offence under Section 376 IPC.

To view such an offence once it is proved, lightly, is itself an

affront to society. Though the award of maximum punishment may

depend on the circumstances of the case, the award of the

minimum punishment, generally, is imperative. The proviso to

Sections 376(1) and 376(2) IPC give the power to the court to

award a sentence, lesser than the minimum for adequate and

special reasons. The power under the proviso is not to be used

indiscriminately or routinely. It is to be used sparingly and only in

cases where special facts and circumstances justify a reduction.

The reasons must be relevant to the exercise of such discretion

vested in the court. The reasons must be set out clearly and

cogently. The mere existence of a discretion by itself does not

justify its exercise. The long pendency of the criminal trial or the

offer of the rapist to marry the victim are not relevant reasons.

Nor is the age of the offender by itself an adequate reason. It is

true that reformation as a theory of punishment is in fashion but

under the guise of applying such theory, the courts cannot forget

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their duty to society and to the victim. The court has to consider

the plight of the victim in a case involving rape and the social

stigma that may follow the victim to the grave and which in most

cases, practically ruins all prospects of a normal life for the

victim.”

In view of the aforesaid pronouncement of Hon’ble Supreme Court, we are

of the view that since in this case a three years hapless girl has been ravished

by the appellant, it would be a misplaced sympathy to show any leniency to

the accused/appellant. Here is the case where the crime committed by the

accused-appellant 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. Ordinarily, the offence of rape is grave by its nature.

Even in ordinary criminal terminology a rape is a crime more heinous than

murder as to destroys the very soul of hapless woman. The appellant ravished

the chastity of a girl of less than 3 years old, jeopardized her future prospect

of getting married, enjoying marital and conjugal life, has been totally

devastated. Not only that, she carried an indelible social stigma on her head

and deathless shame as long as she lives.

In view of what has been indicated herein above, the judgement and order

dated 20.9.2003 passed by the Additional Sessions Judge (Fast Track) Court

No. 14, Mathura in ST No. 972 of 2002 (State Vs. Surendra) arising out of

Case Crime No. 223 of 2002, under Section 376 IPC, PS Raya, district

Mathura do not call for any interference by this Court. Accordingly the

appeal is dismissed.

The appellant is in jail. He shall remain in jail to serve the sentence awarded

to him by the learned Trial Court.

Let a copy of the judgement be sent along with the lower Court record

to the Court below immediately for compliance and necessary entry be

made in the relevant register.

Judgement be certified and be placed on record.

Order Date:-18.12.2019 (Anil Kumar-IX, J.) (Naheed Ara Moonis,J)

Rahul/-