Dismissed

Gajendra v. State of U.P.

Allahabad HC24 Oct 2019JAPL/3345/2012

Case brief

AI extract

What is this about?

High Court was challenged a conviction under Sections 376 and 506 IPC for rape of a 14-year-old minor daughter by her father using a wooden cylinder, supported by medical evidence and victim testimony. The court examined prior precedents regarding victim testimony sufficiency and sentencing standards. It found the trial court rightly convicted the appellant and maintained the harsh sentence deemed

What did the court decide?

The jail appeal is dismissed; the impugned judgment and order of conviction and sentence by the Trial Court are maintained and confirmed.

Gajendra Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2019)

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AFR Reserved on : 25.04.2019 Delivered on : 24.10.2019

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Court No. - 34

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Case :- JAIL APPEAL No. - 3345 of 2012

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Appellant :- Gajendra Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Prateek Samadhiya (A.C.),Shams Uz Zaman,Sunil Kumar Counsel for Respondent :- Mahesh Chandra Joshi (A.G.A.)

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.

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(Delivered by Hon'ble Rajendra Kumar-IV)

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Present jail appeal has been directed by accused-appellant Gajendra against the judgement and order dated 08.08.2012 passed by Govind Ballabh Sharma, Additional Sessions Judge, Court No.3, Ghaziabad in Session Trial No.1281 of 2011 (State Vs. Gajendra Singh) under Section 376 and 506 IPC, P.S. Loni, District Ghaziabad. By the impugned judgement and order dated 08.08.2012, accused-appellant Gajendra has been convicted under Section 376 I.P.C. and sentenced to imprisonment for life with a fine of Rs.1,00,000/- and in default of payment of fine, he shall undergo one year additional rigorous imprisonment; and further he has been convicted under Section 506 I.P.C. and sentenced to rigorous imprisonment for seven years with a fine of Rs. 5,000/and in default of payment of fine, two years additional rigorous imprisonment.

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Brief facts of the case emerging in First Information Report (hereinafter referred to as “FIR”) is that PW-1 Madhubala wife of Gajendra submitted a written report, Ex.Ka-1, in Police Station Loni, District Ghaziabad, stating that on 09.06.2011 at about 3:00 PM, she had gone to market to purchase vegetables. Her husband i.e. accused-appellant Gajendra and her minor daughter aged about

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14 years (victim's name is withheld by us) were present in the house. When she returned after taking vegetables, she saw that genitals of her daughter was bleeding and she was weeping. On being asked, she told that accused-appellant (father of victim) committed rape with her and put wooden cylinder (Lakadi ka Belan) in her genitals. When she asked her husband, why he has done so, he threatened her to kill, due to which she was afraid and remained silent. She went to her parental house with victim daughter and narrated entire story to her family members. Thereafter, she got victim medically examined in a private hospital, later due to not getting any relief, she took her in G.T.B. Hospital, Sahadara, Delhi.

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On the basis of written report Ex.Ka-1, Constable Rahul Kumar (not examined), registered Chick F.I.R. Ex.Ka-5 as Case Crime No. 708 of 2011, under Section 376 and 506 I.P.C. against accused-appellant. Entry of case was made by him in General Diary, copy whereof is Ex.Ka-6.

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PW-5 lady Doctor Nitasha Gupta, medically examined victim and prepared her medical report Ex.Ka-4. She found G.C. conscious oriented; pulse fair, BP-110/70 mm/hg; pubic hair present, not matted; external genitalia (N); hymen torned; posterial wall-tear present 7 cm, clots present; faecal seen through tear; abdomen tenderness present, rigidity present, guarding present.

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PW-4 S.I. Rajpal Singh, undertook investigation of case, commenced investigation, recorded statement of constable registering F.I.R., Informant PW-1 Madhubala, PW-2 victim and other witnesses; visited spot; prepared site plan Ex.Ka-3. On 15.06.2011, accused-appellant Gajendra was arrested by Investigating Officer. He got recorded statement of victim under

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Section 164 Cr.P.C. before Magistrate concerned and after completing entire formalities of investigation submitted charge sheet Ex.Ka-4 against accused in the Court of C.J.M. concerned.

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Case, being exclusively triable by Court of Sessions, was committed by C.J.M. to Sessions Court, Ghaziabad where-from it was transferred to Additional Sessions Judge, Court No. 1, Ghaziabad for disposal according to law.

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Trial Court framed charges accused-appellant Gajendra on 07.02.2011 under Sections 302 and 506 IPC which read as under :-

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आरोप

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मै गोिविन्द बल्लभ शर्मा अर्मा अपर सत्र न्या अया अधीशर् कोटर्मा संख्या अ 3, गा अिजिया अबा अद आप गजिेन्द्र िसंह को िनिम्न ि ल ि खखित आरोप से आरोिपत करता अ हूँ-

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यह िक िदनिा अंक 9.6.2011 को समय करीब 3:00 बजिे िदनि स्था अनि अपनिे घर ित स्थत मौहल्ला अ अमर िविहा अर लिखोनिी था अनिा अ- लिखोनिी िजि० गा अिजिया अबा अद मे अपनिी पुत्री कु० सुरेखिा अ अवियस्क उम्र 14 विषर्मा के सा अथ जिबरनि अयुक्त बलिखा अत्संग िकया अ। इस प्रका अर आपनिे ऐसा अअपरा अध िकया अजिो भा अरतीय दंड संिहता अ की धा अरा अ 376 के अन्तगर्मात दंडनिीय है और मेरे प्रसंज्ञा अनि मे है।

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यह िक उपरोक्त िदनिा अंक समय वि स्था अनि पर जिब आपकी पत्निी निे आपसे पुत्री कु० सुरेखिा अउम्र 14 विषर्मा के सा अथ बलिखा अत्का अर करनिे के बा अरे मे पूछा अतो आपनिे उसे जिा अनि से मा अरनिे की धमकी दी। इस प्रका अर आपनिे ऐसा अ अपरा अध िकया अजिो भा अरतीय दंड संिहता अकी धा अरा अ506 के अन्तगर्मात दंडनिीय है और मेरे प्रसंज्ञा अनि मे है।

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अतएवि एतद्दविा अरा अ आपको िनिदेिशर्त िकया अ जिा अता अ है िक आपके िविरूद्ध उक्त आरोप का अिविचा अरण इस न्या अया अलिखय द्वा अरा अिकया अजिा अये।

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Charge

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I, Govind Ballabh Sharma, Addl Session Judge, Court No 3, Ghaziabad charge you, Gajendra Singh, as under:

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1 . That on 9.6.2011 at around 3 pm in your house situated at Mohalla Amar Vihar Loni, P.S. Loni, Distt Ghaziabad, you forcibly committed rape on your daughter Km Surekha, minor, aged 14 years, thereby committing an offence punishable u/s 376 IPC which is in my cognizance.

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2 . That when your wife asked you about having committed rape on daughter Km Surekha, aged 14 years, on the aforesaid date, time and place, you held out life threat to her, which is punishable u/s 506 IPC and is in my cognizance.

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It is hereby directed that the aforesaid charges be tried against you by this court.

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Accused-appellant denied the charges against him and claimed to be tried.

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In order to substantiate its case, prosecution examined as many as five witnesses out of whom PW-1 Madhubala, PW-2 victim and PW-3 Santu are witnesses of fact whereas PW-4 S.I. Rajpal Singh and PW5 Dr. Nitasha Gupta are formal witnesses.

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Srl. No.	Name of PW	Nature of witness	Paper proved
1.	Madhubala	Fact	Ex.Ka-1
2.	Victim	Fact	Ex.Ka-2
3.	Santu	Fact	---
4.	Rajpal Singh	Formal	Ex.Ka-3, 4, 5 and 6
5.	Dr. Nitasha Gupta	Formal	Ex.Ka-4, M.L.C.

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Subsequent to closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded by Trial Court explaining entire evidence and other incriminating circumstances. In the statement under Section 313 Cr.P.C., accused-

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appellant denied prosecution story in toto. Entire prosecution story is said to be wrong and concocted. In response of question no. 13, he said that Informant and victim implicated him falsely. Victim was subjected to rape by his maternal uncle but he was implicated. Accused-appellant did not chose to lead any evidence in defence.

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Trial Court, after hearing learned counsel for the parties and appreciating entire evidence, oral and documentary, found accusedappellant guilty and convicted and sentenced him as stated above.

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Feeling aggrieved and dissatisfied with impugned judgement and order of conviction, accused-appellant preferred present appeal through Jail.

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We have heard Sri Prateek Samadhiya, learned Amicus Curiae appearing for appellant and Sri Mahesh Chandra Joshi, learned A.G.A for State-respondent at length and travelled through the record with the valuable assistance of learned counsel for the parties.

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Learned Amicus Curiae for appellant assailing verdict of conviction of accused-appellant, advanced his submissions in following manners :-

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(i) Accused-appellant has falsely been implicated in the present case.

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(ii) There is no motive or occasion for accused to commit the present crime.

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(iii) No body has seen accused-appellant to commit crime.

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(iv) PW-1 and PW-3 are not eye witnesses. Victim was subjected to rape by her maternal uncle and accusedappellant has been implicated with the collusion of PW-1

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and PW-2.

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(v) Medical evidence is not compatible with oral version.

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(vi) Victim PW-2 has given evidence against the accused-appellant under the pressure of her mother and maternal uncle.

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(vii) Prosecution failed to establish its case beyond reasonable doubt; Trial Court did not appreciate evidence on record in the right perspective and has committed error in convicting accused. Therefore, accusedappellant is liable to be acquitted.

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Learned AGA vehemently opposed the submissions advanced by learned counsel for appellant and submitted that accusedappellant is named in F.I.R.; he committed rape upon her own minor daughter; he deserves no sympathy; victim PW-2 and Madhubala PW-1 (mother of victim) supported prosecution story and gave evidence against accused-appellant; medical evidence is also compatible with oral evidence. Trial Court right convicted the accused-appellant and appeal is liable to be dismissed.

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Now we may proceed to consider rival submissions of learned counsel for parties and evidence of prosecution available on record.

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PW-1 Madhubala deposed that accused-appellant is her own husband. On the fateful day at about 3:00 PM, she had gone to market to purchase vegetables, her husband (accused-appellant) and her minor daughter (PW-2) aged about 14-15 years were present in the house. When she returned to her house after some time with vegetables, she saw that genitals of victim was bleeding, she was weeping and nervous. On being asked victim told that her father

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committed rape with her and put wooden cylinder (Lakadi ka Belan) in her genitals. When she asked her husband, why he did so, accused threatened her to take away his life. She was afraid and not allowed to go out of house. She went to her parental house with victim and there she narrated entire story to her family members. Victim was medically treated by private doctors but later on she admitted in G.T.B. Hospital, Sahadara, Delhi. She got report of incident scribed by village Pradhan Sohan Lal. She proved written report marked as Ex.Ka-1. In cross examination, PW-1 stated that she was married to accused-appellant 17 years prior. She has five issues with her valid wedlock. She withstood a lengthy cross-examination but nothing adverse material could be extracted so as to disbelieve her statement. It is evident from her statement that when she went to market, her husband and victim were in house and when she returned home she found both of them there but victim was nervous and her genitals was bleeding.

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PW-2 victim deposed that accused-appellant Gajendra is her father. On the fateful day, she was in the house and her father was also there. When her mother went to market for taking vegetables at about 3:00 PM, her father closed the door from inside and committed rape upon her forcibly and put wooden cylinder (Lakadi ka Belan) in her genitals due to which it was bleeding. When her mother returned to home, she narrated entire incident to her. Her father threatened her mother to kill her. Her mother took her to the house of her maternal uncle about two days after where she was medically treated but due to not getting any relief, she was taken to G.T.B. Hospital, Sahadara, Delhi where she remained admitted for one month and she is not felling well so far. In cross-examination, she stated that after the incident, she left studies. She remained in her maternal uncle's house

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from her childhood and came to the house of her father with her mother one month prior to incident. When incident took place, her brothers were not in the house. When her father raped her, she raised alarm but nobody came there. Witness withstood length crossexamination but nothing could be brought on record so as to disbelieve her statement. Certain minor variations occurred in her statement but they are not of such nature which may dent the root of case.

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PW-3 Santu deposed that Informant PW-1 Madhubala is his real sister. His sister came to his house along with her daughter victim and told him that accused-appellant Gajendra committed rape upon her daughter and her genitals was bleeding much. She was admitted in G.T.B. Hospital, Sahadara, Delhi for treatment, where victim underwent three operations but she was not still feeling well. This witness is not eye witness, therefore, his statement does not require much scrutiny.

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PW-5 Dr. Nitasha Gupta deposed that on 15.6.2011, she was posted in G.T.B. Hospital, Sahadara, Delhi. On the same day, she examined victim aged about 14 years, brought by her mother and maternal uncle, and found the victim unconscious, hymen torned, vagina and anus were both united, fecal mater was coming through genitals.

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In the present case victim PW-2 is real daughter of accusedappellant. PW-1 is the wife of accused and closed to victim as well as accused. There is no occasion for PW-1 and PW-2 to implicate accused-appellant falsely. Incident took place in the house of accused. It has come in the statement of PW-2 that door was closed from inside and at the time of incident, she cried but nobody came,

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therefore, was no occasion for anyone to save her. In the statement under Section 313 Cr.P.C., accused-appellant simply denied the crime committed by him but he has not given any plausible explanation why his real wife and daughter were giving false evidence against him.

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In State of Punjab Vs. Gurmeet Singh and others, 1996 (2) SCC 384, Court has held that:

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"A rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, on its shoulder has a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case".

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23. In State of Maharastra Vs. Chandra Prakash Kewalchand Jain AIR 1990 SC 658, Court has held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice.

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24. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same

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weight as is attached to an injured in cases of physical violence.

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25. In State of Punjab Vs. Gurmit Singh and others AIR, 1996 SC 1383, Court held that:

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"In cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensibility. Minor contradictions or insignificant discrepancies in the statement of prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The cause may look for some assurance of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice".

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26. In State of H.P. Vs. Raghubir Singh (1993) 2 SCC 622 , Court held that:

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"There is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity" .

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So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved.

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In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court has held as under :-

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“As regards motive, it is well established that if the

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prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it.”

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Considering the entire facts and circumstances of the case, evidence of prosecution in entirety, we have no hesitation to state that accused-appellant Gajendra committed rape upon her daughter PW-2 and put wooden cylinder (Lakadi Ka Belan) in her genitals, an offence punishable under Section 376 I.P.C., and threatened his wife when she sought to enquire from him, why he committed rape upon his own daughter.

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In view of facts discussed hereinabove, we find that Trial Court has rightly analyzed evidence led by prosecution and found accused guilty and convicted him for having committed rape, an offence punishable under Sections 376 and 506 IPC. Conviction and sentence awarded by Trial Court is liable to be maintained and confirmed. No interference is warranted by this Court. Jail appeal lacks merit and liable to be dismissed.

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So far as sentencing of accused-appellant is concerned, it is always a difficult task requiring balance of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in individual cases.

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It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation upon court to constantly remind itself that right of victim, and be it said, on certain

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occasions or person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175 ].

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Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment awarded to accused-appellant by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.

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In view of above discussion, the appeal lacks merit and is accordingly, dismissed . Impugned judgement and order dated 08.08.2012, is maintained and confirmed.

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Lower Court record along with a copy of this judgment be sent back immediately to District Court and Jail concerned for compliance and apprising the accused-appellant.

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Before parting, we provide that Sri Prateek Samadhiya, Advocate, who assisted as Amicus Curiae, appearing for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 11,500/- for his valuable assistance. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.

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Order Date :- 24.10.2019 Manoj

Gajendra v. State of U.P.

Case brief

What is this about?

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Gajendra v. State of U.P.

Case brief

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