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JAMSHED PAPPU versus STATE OF U.P.

High Court of Judicature at Allahabad

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Jamshed Pappu v. State Of U.P. - CRIMINAL APPEAL No. 74 of 1995 [2005] RD-AH 13 (1 January 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

The judgment and order of conviction and sentence dated 25.11.1994 passed by the Addl. Sessions Judge, Meerut is under challenge in this appeal.  The appellant Jamshed @ Pappu has been convicted and sentenced for the offence punishable under Section 376 I.P.C. and has been directed to undergo rigorous imprisonment for ten years and also to pay fine of Rs. 2000/-.

The backdrop facts of the case which has led for the prosecution of the appellant are that on 3.1.1993 when the prosecutrix Km. Puja aged about seven years and the daughter of complainant Sukhbir Singh (P.W.1) had gone to ease herself in a sugarcane field located in the back of Sulphur Factory of Mawana town at about 11 A.M. her father overheard her shrieks.  Thereupon he along with Ghaffar (P.W.2) and one Niranjan Singh rushed to the place where from the sound of cries were coming and found that the appellant-accused after having undressed the prosecutrix was committing rape upon her. The accused having seen the complainant and the witnesses immediately left Puja and ran away. The prosecutrix was in a bad state with profuse bleeding and she was taken to a Nursing Home by the complainant. Puja was admitted there and received some medical succor.

The complainant remained busy with the treatment of his daughter and he could manage going to the Police Station for lodging the F.I.R. only the next day. A case of rape was registered against the accused upon the written information of the complainant and the investigation of the same was started. On 5.1.1993, the Investigating Officer, S.I. Karan Singh (P.W.5) arrested the accused-appellant Jamshed from his residence. He sent the prosecutrix to District Hospital, Meerut for medical examination on 7.1.1993 and had also taken possession of the bloodstained undergarment worn by Puja at the time of the incident. He also took possession of the bloodstained sugarcane leaves  which were found on at the place of incident  and prepared the respective memos of these two articles separately. He also obtained the certificate of the admission of the prosecutrix in Shastri Nursing Home from Dr. Aniruddh Singh, In-charge of that Nursing Home.  The bloodstained panty of the prosecutrix and the sugarcane leaves which were taken into possession by the Investigating Officer were sent to the Chemical Examination Laboratory, Agra and on proper examination the panty was found stained with human blood and also spots of semen were detected on it. The Chemical Examiner also found the sugarcane liefs stained with human blood. The Medical Examination of the prosecutrix Puja was conducted on 7.1.1993 at P.L. Sharma Hospital, Meerut by Dr. Manisha Verma (P.W.3). She prepared the Medical Examination Report (Ext. Ka-2) There was Ist degree perineal tear present in her vagina which was bleeding on touch. The margins of the injury were blue and the vagina was inflamed. Her hymen was found torn.

The Investigating Officer after completing the entire investigation submitted charge-sheet.

The appellant was charged for the aforesaid offence punishable under Section 376 I.P.C. He denied to the charges and claimed trial.

The prosecution in support of its version examined the complainant Sukhbir (P.W.1) an eye witness, Ghaffar (P.W. 2) another eye witness, Dr. Manisha Verma Medical Officer Dufrin Hospital Meerut (P.W.3),  The prosecutrix Km. Puja (P.W.4) and Karan Singh (P.W.5) the Investigating Officer. The prosecution has also proved the documents (Exts. Ka-1 to Ka-10) which include the First Information Report, Medical Report of prosecutrix, the report of Serologist, the memos prepared by the Investigating Officer for taking different articles in his possession, the reference report of prosecutrix for her medical checkup at Dufrin Hosp;ital Meerut given by the Doctor treating her at Shastri Nursing Home Mawana etc.

The accused in his statement before the court denied  the entire allegation of the prosecution made against him and stated that he had been falsely implicated on account of enmity. He further stated that on account of his personal grudge Ghaffar (P.W.2) has got him implicated in this case. No evidence, oral or documentary, whatsoever, has been given from the side of defence.

The trial court after having considered all the evidence and other materials available on record was of the view that the prosecution had succeeded to bring home the guilt for the offence of rape against the appellant-accused and accordingly the impugned judgment convicting the the accused and passing sentence upon him as aforesaid was rendered.

The appellant-accused since the very inception of the case fter he was arrested, has been inside the lockup and this appeal has been preferred by him from the jail itself. Since there was nobody to represent the appellant in this appeal, Sri Sikandar Bharat Kochar was appointed as Amicus Curiae. He has been heard at length and I have gone through the entire original record of the trial court.  It is submitted by Sri Kochar, the Amicus Curiae that the evidence which has been recorded by the prosecution in the present case does not inspire confidence and as such it is not believable. The First Information Report has been lodged quite belatedly after about 36 hours of the incident and the medical examination of the prosecutrix has also been conducted belatedly after four days of the incident. Sri Kochar has also tried to emphasize that the other witness of prosecution Niranjan Singh Verma named in the F.I.R. has not been produced by it. The defence has taken a plea that the other witness Ghaffar (P.W.2) produced in this case is inimical against the accused. Since there is no reliable independent witness about the incident, the evidence of prosecutrix and  her father should not be believed. Sri Kochar has also tried to point out certain discrepancies here and there appearing in the statement of the witnesses of fact.

As regards the veracity of the evidence which has been produced, in form of oral account of the incident as well as in the form of corroborative evidence, it is note worthy that the statements of prosecutrix (P.W.4) and her father Sukhbir (P.W.1) find full corroboration of all material particulars of this rape case from different documents upon which the prosecution has placed reliance and which have been duly proved on record. The most important corroborative evidence in this case is the Medical Examination Report of Km. Puja which describes the nature of injuries she was having at the time she was examined by Dr. Manisha Verma (P.W.3). She found her to be a tender aged girl who was not having her breasts tissues developed at all nor she could find any pubic or the axillary hair present on her body. Puja was having a first degree perineal tear which after four days of the incident was bleeding on touch. Vagina was inflamed.  Her weight was only about 20 Kgs. and the height was 3 feet 2 inches only. Obviously Puja was a tender aged girl and quite  possibly within 7 to 8 years of age. Even though X-Ray Examination of the elbows and wrist-joints were advised, yet it appears that no such examination was conducted; still it cannot be said that Puja was a grown up woman at the time of the medical examination. The fact that Puja was sexually assaulted, is more than obvious from this medical report which further finds support from the reference report dated 3.1.1993 given by Dr. Smt. Shashi Singh, vide Ext. Ka-8. That reference report mentions about the vaginal injury of Km. Puja. This reference has been done for her medico legal checkup to Dufrin Hospital Meerut. Thus, these two reports fufile:///usr/share/doc/HTML/index.htmllly corroborate to the statements given by the prosecutrix and her father before the trial court that Puja was raped and sexually assaulted on 3.1.1993 resulting into injuries to her private part and her consequent admission for medical treatment to Shastri Hospital and Nursing Home Mawana, District Meerut.

The statements of Sukhbir (P.W.1) and his daughter Km. Puja (P.W.4) further get full corroboration of the facts stated by them from the recovery memo (Exts. Ka-3 and Ka-4) which were prepared by the Investigating Officer (P.W.5) for taking the blood and semen stained panty of Puja and the blood stained sugarcane leaves found from the place of incident in his possession. From the report of Serologist (Ext. Ka-11) it stands fully established that these two articles had human bloodstains on it. Besides it the panty had also stains of human semen in which spermatozoa were found present. Since the human blood and semen with spermatozoa had been noticed by the Serologist, the statement of the prosecutrix and her father obviously get substantial corroboration of the fact that Km. Puja was raped and sexually assaulted at the place where the incident is alleged to have taken place.

In the present case the accused had not taken any plea that the prosecutrix or her father had any enmity from before with him nor did he say or even suggest to the witnesses in the cross-examination that they had any animus to implicate the appellant falsely in this case. It has been argued by Sri Kochar, the Amicus Curiae that the witness Ghaffar had been inimical against the accused as he was occupying his residence which he did not vacate at Ghaffar's will.  A perusal of the statement of this witness Ghaffar (P.W.2) shows that the queries put to him from the side of the defence during the cross-examination he stated that accused Jamshed was residing in a rented house in his locality belonging to one Rafique. This tenement of the accused was located at a distance of about thirty paces from his house and he had nothing to do with that building. The defence has given suggestion to this witness that he wanted to get the house of Jamshed vacated in which, after the accused had left it, he installed one of his acquaintances. The witness has denied to this suggestion and has categorically stated that he had no quarrel with Jamshed, the accused, regarding his occupation of the tenanted building of Rafique.  Obviously this witness is also not at all to be blamed fork giving the ocular account against the accused-appellant without any basis or on account of any previous enmity which might be existing between him and the appellant.  Therefore, as regards the merit of the evidence given by P.W.2, it appears that it substantially supports the evidence given by the prosecutrix and her father. A perusal of the cross-examination of Sukhbir (P.W.1) and his daughter Km. Puja (P.W.4) reflects to the fact that these witnesses have given very natural statements of the incident which had actually disdained them due to its most heinous character. False accusation of such a nature by such witnesses against a person for whom they did not possess any animus for false implication are unimaginable. If at all a false accusation could have been made for one or the other reason not reflected in the evidence, those would have been of different type and not as made in the present case against the accused. Moreover, for creating a false case father of a tender aged girl will not get her assaulted in such a manner as has been done in the present case. The trial court, thus, appears to be wholly justified in reaching the conclusion as has been reached in the impugned judgment rendered by it and no infirmity, whatsoever, appears noticeable in the order of conviction and sentence passed by the trial Judge. The prosecution on the strength of the evidence recorded, has fully established on record that Km. Puja was raped and sexually assaulted by the accused-appellant on the date, time and place alleged by it. Since the prosecution has brought home the guilt for the offence of rape to the appellant-accused beyond reasonable shadow of doubt, the charge for the offence punishable under Section 376 I.P.C. has been rightly found proved beyond doubt by the court below.

In the result, the appeal does not appear to have any force and is accordingly dismissed.

The appellant-accused had all along been in the lockup after his arrest in this case on 5.1.1993. The sentence of ten years rigorous imprisonment awarded against him by the trial court and also the additional sentence for non-payment of the fine imposed upon him all have been undergone. As such the judgment and order of conviction and sentence as passed against him is though confirmed in this appeal, the appellant shall no longer be detained in the lockup for the fact that his appeal by this judgment has been dismissed. If the appellant has not been released so far from the jail, he shall be released forthwith, if not wanted in any other case.  The court below shall find out the correctness of above facts and then pass suitable orders in accordance with law.

Office is directed to send the original record and a certified copy of this judgment to the court below for necessary compliance etc.


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