Dismissed

Ram Babu v. State of U.P.

Allahabad HC27 Oct 2018CRLR/955/1987

Case brief

AI extract

What is this about?

In this criminal revision, the court rejected the appellant's challenge to his conviction for raping a minor daughter. Upholding lower courts' findings, the court held that sexual intercourse with a minor is rape regardless of consent and dismissed the revision, refusing to reduce the sentence. A stay order was vacated.

What did the court decide?

Revision dismissed. Stay order vacated. Revisionist to be released upon serving sentence.

Ram Babu Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2018)

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Reserved on 12.09.2018 Delivered on 27.10.2018

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Court No. - 41

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Case :- CRIMINAL REVISION No. - 955 of 1987

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Revisionist :- Ram Babu Opposite Party :- State Of U.P. Counsel for Revisionist :- R.K.Saxena Counsel for Opposite Party :- A.G.A.

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Hon'ble Aniruddha Singh,J.

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1- Heard Sri Vidya Kant Rai, learned counsel for the revisionist, Sri D.N. Tiwari, learned A.G.A. for the State and perused the record.

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2- This criminal revision has been preferred by the revisionistRam Babu challenging the order dated 2.4.1987 passed by District and Sessions Judge, Kanpur Dehat in criminal Appeal No. 36 of 1986 whereby the aforesaid appeal preferred by the revisionist has been dismissed as well as order dated 14.11.1986 passed by 4^th Assistant Sessions Judge, Kanpur Dehat in criminal case no. 158 of 1981 whereby revisionist was convicted and sentenced under Sections 376 I.P.C. for seven years rigorous imprisonment and under Section 363 I.P.C. for three years rigorous imprisonment. Both the sentences will run concurrently.

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3- Learned counsel for the revisionist submitted that the case was not proved beyond reasonable doubt by the proseuction. Presumption of Section 114(a) of the Evidence Act (hereinafter referred to as the 'Act') will not lie against the revisionist. According to Radiologist report, the age of the prosecutrix is between 15 to 18 years as such she appears to be major.

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4- In nutshell, the prosecution case is that first information report was lodged on 28.1.1979 at about 5-00 a.m. The revisionist had enticed away the daughter of the complainant and he kept 15-20 days and committed rape upon her. After investigation, charge-sheet was submitted against the revisionist under Sections 363, 366 and 376 I.P.C. Charges were framed under Sections 363, 366, 376 I.P.C. but he pleaded not guilty to the charges.

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5- Prosecution examined P.W.1-Prosecutrix, P.W.2-Sheo Nath, P.W.3-Raja Ram, P.W.4-S.I. Bhagwan Singh, P.W.5-Dr. Madhu Rani and P.W.6-Dr. Iqbal Husain. The statements under Section 313 Cr.P.C. were recorded wherein the revisionist has denied the allegation made against him.

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6- After hearing learned counsel for both the parties, the impugned order was passed and the revisionist was convicted under Sections 363 and 376 I.P.C. and was acquitted under Section 366 I.P.C. Against this order, criminal appeal no. 36 of 1986 was filed and that was dismissed vide order dated 2.4.1987. Hence this revision.

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7- First argument raised by the learned counsel for the revisionist that presumption under Section 114(a) of the Act will not lie against the revisionist.

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8- Section 114A of the Evidence Act, 1872 is reproduced herein under:

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114A.Preseumption as to absence of consent in certain prosecutions for rape. -In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.”

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9- From perusal of Section 14(a) of the Evidence Act, it is necessary to see the Section 376 (2) (a), (b), (c), (d), (e) and (g) I.P.C. They are quoted as under:

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“376. Punishment for rape. -(2) Whoever,-

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(a) being a police officer commits rape-

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(i) within the limits of the police station to which he is appointed;

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(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

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(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

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(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant

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subordinate to him; or

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(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

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(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

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(e) commits rape on a woman knowing her to be pregnant; or

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(g) commits gang rape,

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shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine;

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Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.”

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10From perusal of the above provisions, this case was not fallen under Section 376(2) I.P.C. Hence, there is force in the argument raised by the learned counsel for the revisionist that presumption under Section 114(a) of the Act will not lie against the revisionist.

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11It is also pertinent to mention here that if prosecution proved his case beyond reasonable doubt against the revisionist then without presumption under Section 114(a) of the Evidence Act, accused may be convicted.

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12- Word 'proved' is defined under Section 3 of Evidence Act as under :-

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“Proved”.- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

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13The question is whether a prudent man under these

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circumstances can believe that the facts stated by the prosecutrix do exist beyond reasonable doubt or not.

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14From perusal of the record, it transpires that the prosecutrix was examined before the court as P.W.1 and she stated that she was kidnapped and raped by the revisionist. She has specifically stated that revisionist entered his penis in her place of urine. She felt pain and bleeding was shown.

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15Learned counsel for the revisionist submitted that she was consenting party and was stayed with the revisionist for 10 to 15 days without any alarm. According to Sections 375 and 376 I.P.C. if sexual intercourse being done by any person against her will without her consent or consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt or she believes that he is not her husband, etc.

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16The words will and consent are very important for this Section. The prosecutrix has clearly stated In her statement that intercourse was done without her will and without her consent. She was kidnapped by the revisionist. She was living with him, hence she was bound to follow all directions given by the revisionist.

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17Question is whether the consent was given by the prosecutrix, answer will be certainly not. It is admitted fact that she was unmarried girl. There is no allegation against the prosecutrix that she was the lady of bad character. It is also admitted and proved from the perusal of the record that she was not major. The age of the prosecutrix was under 18 years by all circumstances. Hence, prima facie, consent is immaterial. Hence, it is very clear that if there was any consent that was not free consent and consent in the eye of law.

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18Second question is about the will. Presumption lies that there was no will of the prosecutrix because there was no evidence against the prosecutrix that she was a lady of bad character. Therefore, it is very important factor that no question arises about the will of the prosecutrix to make sexual relation with the revisionist.

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19P.W.2-Sheo Nath has also corroborated the evidence of the prosecutrix and same corroboration has been given by P.W.3-Raja Ram.

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20P.W.5- Dr. Madhu Rani has also stated in her statement and

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proved the medical report and found that hymen of prosecutrix was torn and appears to be old. It shows that without marriage, the revisionist raped the prosecutrix several times. Prosecutrix was a minor girl. It also shows that because the prosecutrix was living with the revisionist; hence he used her several times and raped her. P.W.6-Dr. Iqbal Husain has also stated that the age of the prosecutrix was not above 18 years. Therefore, it is very clear that prosecutrix was minor at the time of incident. According to F.I.R., she was 15 years of age. According to statements of mother and father, she was minor and according to medical report, she was minor. Hence question of consent and will does not arise.

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21In these circumstances, this Court found that the argument raised by the learned counsel for the revisionist that prosecutrix was a consenting party, has no force and is liable to be rejected. 22The evidence of the prosecutrix is corroborated by the medical evidence because the hymen of the prosecutrix was found torn and was not intact. Hence, offence under Section 376 I.P.C. is proved beyond reasonable doubt. It is also pertinent to mention here that the revisionist was the relative of the prosecutrix and done this type of offence with minor girl.

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23On the point of conviction both the courts have given concurrent findings of fact and the view taken by both the courts below is plausible five, hence, no interference is called for in revision. 24On the point of sentence learned counsel for the revisionist submitted that the revisionist and prosecutrix had performed their marriages and now they are living happily life and their relationship with their children are also cordial. The incident is of the year 1987. Since then 31 years have elapsed and they are belonging to rural area. Therefore, lenient view may be taken against the revisionist and the sentence of the revisionist may be reduced. 25Considering the facts and circumstances of the case and the submission made by the learned counsel for the revisionist, the Court finds that appellate court has already taken a very lenient view in awarding minimum punishment for seven years rigorous imprisonment under Section 376 I.P.C. Since, the provisions under Section 376 I.P.C. provides minimum punishment of seven years,

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hence, there is no question to reduce the sentence awarded to the revisionist. On this issue, the argument of learned counsel for the revisionist has also no force.

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26This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present revision lacks merit and is liable to be dismissed.

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27The revision is dismissed.

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28Stay order, if any, stands vacated.

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29The revisionist-Ram Babu is in jail since 6.8.2018. The C.J.M., Kanpur Dehat is directed to ensure that the revisionist shall be released immediately after serving out the sentence, if he is not wanted in any other crime.

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30Certify this judgment to the lower court immediately. Order Date :- 27.10.2018 OP

Ram Babu v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ram Babu v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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