Dismissed

Anoop Verma v. State of U.P. and 2 Others

Allahabad HC2 Aug 2023/1948/2017

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal challenging the conviction and sentence under the POCSO Act and IPC Section 376(D) for rape. The court held that the prosecution evidence, including medical reports and FSL findings, sufficiently proved the appellant's involvement despite minor discrepancies in witness statements regarding the exact location.

What did the court decide?

Criminal appeal dismissed; conviction, sentence, and order resulting in 20 years rigorous imprisonment and fine upheld; appellant to remain in jail.

Anoop Verma Vs State of U.P. and 2 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:51318

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[Reserved]

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Court No. - 29

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Case :- CRIMINAL APPEAL No. - 1948 of 2017

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Appellant :- Anoop Verma Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Ved Prakash Verma,Ajay Veer Singh,Amit Chaudhary,Rajeev Kumar Verma,Satyendra Nath Mishra,Syed Husain Mehdi S.H.Me,Syed Raza Mehdi,Tushar Srivastava Counsel for Respondent :- Govt. Advocate,Firoz Ahmad Khan

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Hon'ble Mrs. Renu Agarwal,J.

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The present Criminal Appeal under section 374(2) of Cr.P.C. has been filed against judgment and order dated 12.10.2017, passed by Additional Sessions Judge-VII, Room No.06, Faizabad, in Session Trial No.06 of 2014(State of U.P. Vs. Anoop Verma), arising out of Case Crime No.356 of 2013, under section 376(D) IPC, Section 3/4 Protection of Children From Sexual Offences Act, 2012 and Section 3(2)(V) SC/ST Act, registered at Police Station Poora Kalandar, District Faizabad, convicting and sentencing the appellant under section 376(D) IPC r/w Section 3(2)(V) of SC/ST Act, for a period of 20 years rigorous imprisonment and a fine of Rs.10,000/- in default of payment of fine further to undergo 2 years additional rigorous imprisonment and under Section 5(D)6 of Protection of Children From Sexual Offences Act, 2012, for a period of 10 years rigorous imprisonment and a fine of Rs.7,000/-, in default of payment of fine further to undergo one year additional imprisonment, the sentences are made to run concurrently.

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Wrapping the facts in brief of the FIR are that the daughter of informant namely, ‘x’, aged about 11 years, went towards temple of Pandey baba searching for her younger brother on 22.09. 2013 at about 19:30 p.m. At the same time, accused Jitendra @ Tinder son of Ramautar dragged his daughter towards the field of sugarcane of Hariram Kori and forcibly committed rape upon her.

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On the basis of written report given by Tarachand (father of the victim), FIR was registered on the same day i.e. on 22.09.2013 at about 19.30 p.m., at Case Crime No.356 of 2013, under Section

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376(D) IPC, Section 3/4 Protection of Children From Sexual Offences Act, 2012 and section 3(2)(V) SC/ST Act, at Police Station Poora Kalandar, District Faizabad. The investigation was entrusted upon Investigating Officer, namely, Rajesh Chandra Tripathi (P.W.-3), who conducted the investigation, inspected the place of occurrence and prepared the site plan, recorded the statements of the witnesses and victim, get the victim medically examined and after collecting sufficient evidence, filed the charge sheet against the present appellant under section 376(D) IPC, Section 3/4 Protection of Children From Sexual Offences Act, 2012 and section 3(2)(V) SC/ST Act, before the court on 30.11.2013. After compliance of section 207 Cr.P.C. the case was committed to the court of sessions.

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Court of sessions summoned the accused, framed and read over the charges to accused, who denied the charges and claimed to be tried.

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In order to prove the prosecution version, seven witnesses were produced on behalf of the prosecution. P.W.-1 Tarachand (informant), P.W.-2 (the victim), P.W.-3 Rajesh Chandra Tripathi (first Investigating Officer), P.W.-4 Dr. Lalmani, P.W.-5 Head Constable Musheed Khan, P.W.-6 Vijay Shankar Mishra (second Investigating Officer), P.W.-7 Dr. Vineeta Rai. Constable Amisha Patel (C.W.-1) was summoned by the court as a court witness.

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After completion of prosecution witnesses the statement of accused were recorded under section 313 Cr.P.C. Accused denied the commission of crime and submitted that he is falsely implicated in the present case.

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Appellant was awarded the opportunity to adduce defence, which he did not availed of.

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After perusal of evidence and material on record learned trial court came to the conclusion that accused-appellant Anoop Verma alongwith co-accused Jitendra @ Tinder committed rape upon the victim and sentenced the accused appellant accordingly. Aggrieved with the judgment and order dated 12.10.2017 the present appeal is filed.

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I have heard the rival submissions of learned counsel for the parties and perused the record.

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Before considering the evidence on record, it is desirable to recapitulate the statements of witnesses.

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Learned counsel for the appellant submitted that learned trial court failed to appreciate the statement of P.W.-2, which is not corroborated to the medical evidence, there are contradictions in the statements of P.W.-1 and P.W.-2. Learned trial court failed to appreciate that the ocular testimony are not in corroboration to the medical evidence. There are no marks of external or internal injuries on the body of prosecutrix. There is previous enmity between both the families due to village partibandi. Appellant was not named in the FIR. The name of other co-accused was not told by the prosecutrix to her father. His name was not mentioned even in the statement of prosecutrix recorded under section 161 Cr.P.C., whereas the appellant and prosecutrix are residing in the same village. In the statement of P.W.-1, he admitted that he knows the name of accused at the time of FIR, but due disturbance he could not mentioned the name of accused appellant in the first FIR. The statement of old man as disclosed by the prosecutrix was not recorded under section 161 Cr.P.C. At the time of recovery it is not mentioned, whether the cloths of prosecutrix were having blood stain or not. Cloths of prosecutrix were also changed by the mother of prosecutrix, which she wore at the time of incident. It is further submitted that appellant has no previous criminal history and the sentence is too severe, therefore, it is prayed to set-aside the impugned judgment and order passed by trial court.

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On the contrary, learned AGA for the State argued that FIR was lodged without any delay on the date of occurrence itself when the father of prosecutrixe came back from the market. The prosecutrix is 11 years old child having injury on her private parts. Hymn was found torn and the external injuries was also found near her mouth. The prosecutrix identified the appellant at the time when her statement were being recorded during trial in the court. Therefore, there is no anomaly in the judgment of trial court and the appeal is liable to be dismissed.

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P.W.-1 Tarachand deposed that he lodged the FIR against the appellant on 22.09.2013 at about 6.30 p.m. when he returned from the market and his wife narrated the story to him. P.W.-1 is not the eye witness. He stated on oath that prosecutrix was traumatize with the incident and was continuously weeping. He handed over the clothes of prosecutrix to police and identified his signature on the recovery memo 7-A(1). It is also deposed that incident occurred in the field of Hariram Kori and Investigating Officer prepared the site plan on the pointing out of prosecutrix in the presence of P.W.-1 and his wife. The statement of prosecutrix was recorded in the presence of lady constable. His wife Gayanwati moved an application to the police station concerned on 25.09.2013 disclosing the name of appellant Anoop Verma.

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P.W.-2 prosecutrix stated on oath that when she was searching for her younger brother Nitesh and she reached next to Bajrang bali and Ghadebaba temples, near the shiv temple, co-accused Jitendra @ Tinder alongwith present appellant, who were sitting in the temple, dragged her in the sugarcane field of Hariram Kori on 22.09.2013 at about 6.30 a.m. and committed rape upon her. The incident was seen by an old man, who returned after seeing the incident and again come at the place of occurrence alongwith some villagers, then the accused took to their heels. During the incident accused slapped her, abused her, addressed her with caste indication and also threatened her to kill her alongwith the entire family. Thereafter she reached her house alone and disclosed the incident to her parents. Her statement was recorded by the lady constable at her home. The place of occurrence was visited by Circle Officer who prepared the site plan. Prosecutrix proved her statement recorded under section 164 Cr.P.C. also during the trial.

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P.W.-3 Rajesh Chandra Tripathi (first investigating officer) deposed that he was working as Circle Officer in Purakalander on the date of incident and conducted investigation. Prepared site plan at the pointing out of the prosecutrix. P.W.-3 proved site plan (Ex.Ka-3), recovery memo of the cloths of prosecutrix (Ex. Ka-2). Statement of prosecutrix recorded under section 164 Cr.P.C. (Ex. Ka-4). Witness P.W.-3 deposed that on the basis of the statements of witnesses the

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case was converted under section 376(D) IPC and section 3(2)(V) of SC/ST Act.

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P.W.-4 Dr. Lalmani ascertained the age of victim and proved medical report (Ex. Ka-5).

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P.W.-5 head constable Musheed Khan proved the Chek report 242 of 2013 (Ex. Ka-6) and G.D. No.21 dated 22.09.2013 at 19.30 P.M.(Ex. Ka-7).

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P.W.-6 Vijay Shankar Mishra is the second investigating officer of the case, who deposed in the court on the basis of investigation conducted by first investigating officer namely Rajesh Chandra Tripathi, (P.W-3). He recorded the statement of prosecutrix again, send the recovered cloths of prosecutrix for F.S.L. report and submitted charge sheet (Ex. Ka-8) in the court concerned.

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P.W.-7 Dr. Binita Rai stated on oath that she was posted as senior consultant in the District Women Hospital and medically examined the prosecutrix. She was unmarried and external organs were not developed and found one abrasion of 10 cm. X 0.2 cm. at the distance of 2.05 cm. from the right angle of mouth. Hymn was torn and redness was present. No bleeding was found and after taking smear on slid, she was send to C.M.O. for determination of age and a sample was send for F.S.L. report. The witness proved the medical report as Ex.Ka-9.

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Court summoned C.W.-1, constable Amisha Patel who stated on oath that she recorded the statement of prosecutrix at her home situated at Madhavpur.

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The impugned incident occurred on 22.09.2013 and FIR was registered in the evening on the same day when father of victim returned from his job. There is no delay in lodging the FIR. Victim was medically examined on 24.09.2013 by the doctor Dinesh Kumar, Medical Officer C.S.C. Faizabad. Smear slide was taken and send for analysis. F.S.L. report is on record as Annexure no.10 to the appeal. According to F.S.L. report human blood was found on the cloths wore by the prosecutrix at the time of occurrence and spermatozoa were also found on the underwear of the victim. According to medical report hymn was torn and redness was present. Therefore,

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apparently there is no doubt that victim was subjected to the sexual assault.

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P.W.-7 Dr. Vineeta Rai proved the medical report and deposed that victim was 11 years old, her hymen was torn and redness was present. Two slids of vaginal smear were send for F.S.L. report on 23.09.2013 at about 11.20 a.m. As per F.S.L. report spermatozoon were found in undergarments of the prosecutrix and human blood was also found on her frock.

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Victim was medically examined by radiologist and the medical age of the victim was found 11 years. P.W.-1. The father of victim has disclosed the age of victim as 11 years in the FIR, therefore, there are no contradictions in the age of the victim. It is proved by medical report as well as oral testimony that prosecutrix was minor at the time of fateful incident.

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It is submitted by learned counsel for the appellant that FIR was lodged against Jitendra @ Tander and the appellant was not named in the FIR. Later on an application was moved by the mother of the victim implicating the present appellant Anoop Verma in this crime only because he is the friend of Jitendra @ Tinder. It appears from the committal letter dated 21.12.2013 that Jitendra @ Tinder has been declared juvenile (the child in conflict with law), hence his file is separated from this case and send to Juvenile Justice Board for further proceeding and the present appellant only was tried by the sessions court.

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P.W.-1 stated in his statement on oath that his wife has the passed High School and she is social worker and encourages animal husbandry in village. P.W.-1 stated in his cross examination that his daughter named the appellant Anoop Verma alongwith Jitendra @ Tinder when she told him about the incident but he was so awestruck that he could not mention the name in written report. P.W.-1 in so many words revealed the involvement of present appellant in the incident. P.W.-1 is not the eye witness of the incident. He deposed on the basis of information gathered by him through his wife and on the basis of the statement of victim.

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P.W.-2 victim herself corroborated the contents of the FIR and stated that when she was going in search of her younger brother, Anoop Verma as well as Jitendra @ Tinder were siting near in the temple, both of them came and dragged her towards the field of Hariram Kori and raped her. The present appellant committed rape upon her prior to Jitendra @ Tinder. Moreover, she identified the appellant during the course of trial in the court room. In her statement recorded on 26.04.2016 about eight months after her previous statement, deposed that at the time of incident she know the present appellant by face, not by name and his father told her the name of accused Anoop Verma. She further submitted that she revealed the name of both the accused to her mother. There is no contradiction in the statements of victim recorded under sections 161 Cr.P.C. and 164 Cr.P.C. The statement recorded in court, the deposition of the prosecutrix is impeachable and inspire confidence that present appellant committed rape with her alongwith Jitendra @ Tinder (now juvenile). Prosecution version is corroborated with medical report and FSL report which goes to show that she was subjected to rape by present appellant. She disclosed that temple Pandeybaba and temple of Bajrangbali are at the same place and the temple of Shiv is about 100 meter away from the temple of Bajranjbali. Accused followed her from the temple of Bajrangbali and caught her in front of the Shiv temple.

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Learned counsel for the appellant argued that there are contradictions to the place of occurrence where the victim was caught by the accused, whether in front of temple of Bajrangbali or in front of Shiv temple. According to site plan also the place of occurrence has been shifted. P.W.-3, Rajesh Chandra Tripathi (first Investigating Officer) deposed that he prepared site plan of the place of occurrence on the pointing out of victim as well as her parents. The place of occurrence is shown by later “X” in the sugarcane field of Hariram Kori. He explained that he did not see the temple of Pandaybaba and the temple of Bajrangbali, but he mentioned Shiv temple. P.W.-2 has specifically stated that accused started following her from the temple of Bajrangbali and caught her in front of Shiv temple. Hence, there is no contradictions in the statements of victim

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and Investigating Officer. Both of the witnesses corroborated the site plan prepared during the course of investigation. The minor contradictions in the statements do not vitiate the whole investigation. 28. Learned counsel for the appellant argued that in the recovery memo neither the name of female constable is mentioned nor her signature was found on the recovery memo. However, the signature of the parents of victim were identified by witness P.W.-3. P.W.-3 deposed that statements of victim was recorded during investigation by lady constable and victim named Jitendra @ Tinder and one more person involved in the crime. The name of present appellant was disclosed in the application moved by the mother of the victim on 27.09.2013. Learned counsel for the appellant submitted that the name of present appellant was later on developed only on account that he is the friend of Jitendra @ Tinder, but if we go through the entire prosecution case, Jitendra and ‘one more’ is written in the FIR. The victim very clearly identified the present appellant Anoop Verma before the court of session, hence it cannot be said that the case against the appellant is developed after thought and appellant was implicated just because that he is the friend of Jitendra @ Tinder. Appellant did not disclose any other reason for his false implication in the case.

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It is argued by learned counsel for the appellant that due to public demonstration, road block, public pressure and political pressure, the appellant has falsely been implicated in this case. It is fairly admitted by P.W.-1 that there was public demonstration in regard to the impugned incident but he was not present in demonstration and does not co-relate to the fact that due to public demonstration appellant is falsely implicated in the case. Victim categorically alleged the appellant and identified him in the court, therefore, there is no any reason to disbelieve the statement of victim. It is also pertinent to mentioned that appellant did not adduced any defence to show that he was not involved in this incident.

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Learned trial court discussed each and every aspects of the evidence. It is also mentioned that appellant Anoop Verma was not named in FIR, inspite of the fact that he was involved in the incident, therefore, informant had to adopted the means of public pressure in

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order to implicate his name in the FIR. Learned trial court also held that oral evidence coupled with medical evidence and F.S.L. report reached to show that the present appellant was actively involved in the crime.

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There are not such type of contradictions or informatics in the statements of witnesses which may lead to show that the judgment of trial court suffers with illegality. Learned trial court discussed each and every points in his judgment. Therefore, the judgment of trial is liable to be upheld and appeal is liable to be dismissed.

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In view of the forgoing discussions, the conviction and sentence of the appellant by the trial court is hereby upheld.

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The appeal lacks merit and is, accordingly, dismissed.

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The appellant is stated to be in jail. He will remain in jail and serve out the sentence as awarded by the trial court.

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Let a certified copy of this order alongwith the lower court record be sent to the trial court concerned for its compliance.

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[Renu Agarwal,J.]

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Order Date :- 02.08.2023

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VKG/kkv

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Digitally signed by :- KRISHAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Anoop Verma v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Anoop Verma v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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