The Allahabad High Court has acquitted an accused who was sentenced to life imprisonment by a trial court for raping a 6-year-old girl in 2001.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Gautam Chowdhary passed this order while hearing a Criminal Appeal filed by Heera.
By means of the appeal, the accused-appellant Heera is assailing the order of conviction dated 24.10.2002 passed by the Additional Sessions Judge (Fast Track) Court, District Bulandshahr in Sessions Trial whereby the accused-appellant has been sentenced under Section 376 I.P.C to undergo for life imprisonment along with fine of Rs 1000/- and in default in payment of fine to further undergo simple imprisonment of two years.
The prosecution case emanates on the written report of the informant, as per which, on 31.03.2001 when the informant had gone for work and his wife Smt Heera Devi had gone to jungle to bring the fodder and his daughter aged about 04 years was alone in the house, while playing she went out of the house to look for her mother, at about 06:00 P.M, when the accused appellant enticed her away and took her to the wheat field of Isthtiaq Haji and committed rape upon her.
On hearing her cry, Gurcharan Singh, son of Mohar Singh, and Durga Prasad, son of Moti Ram, rushed towards the spot and saw that the accused-appellant had forcefully pressed the victim and was committing rape upon her. As soon as Gurucharan Singh and Durga Prasad reached, the accused appellant ran away towards the forest. The trouser (Pajami) of the victim was brought down and was soaked with blood and the victim was lying unconscious. The informant and his wife rushed to the place of occurrence and brought back the victim.
Upon such a report, the F.I.R came to be lodged on 31.03.2001 in Case under Section 376 I.P.C at Police Station Jahangirabad, District Bulandshahr. The matter was entrusted for investigation to the Investigating Officer and the victim was medically examined on 01.04.2001 at about 12:30 A.M. Thereafter statements of the witnesses including that of the victim were recorded under Section 161 Cr.P.C and 164 Cr.P.C. The Investigating Officer, after collecting evidence, culminated the investigation in submission of a charge sheet against the accused-appellant under Section 376 I.P.C upon which cognizance was taken on 11.06.2001 by the concerned Magistrate.
The case was committed to the Court of Sessions and the case was registered as a Sessions Trial. Charge was framed under Section 376 I.P.C, against the accused-appellant. The accused-appellant denied the charges and demanded trial. Consequently, the trial commenced.
The accused-appellant has been confronted with the material evidence adduced against him during the trial. His statement under Section 313 Cr.P.C came to be recorded wherein he stated that he has been falsely implicated and that the evidence adduced is not reliable.
On the basis of the above material produced during the trial, the Court of Sessions has come to the conclusion that the guilt of the accused appellant has clearly been established beyond reasonable doubt and consequently, the accused-appellant has been convicted and sentenced as per the law.
Challenging the impugned order of conviction and sentence against the accused appellant, Shyam Babu Vaish, counsel for the accused appellant, submitted that the Court of Sessions has erred in recording the finding of conviction and sentence against the appellant inasmuch as the testimony of witnesses are not reliable and that the accused-appellant has been falsely implicated.
He further submitted that the victim did not sustain any internal or external injury and the medical examination as well as supplementary medical report do not corroborate with the prosecution version.
Counsel further argued that perverse findings has been recorded by the trial Court. Thus, the impugned judgment and order is liable to be set aside.
Per contra, A.G.A has submitted that offence has been committed by the accused-appellant and the trial Court, after considering the evidence available on record, recorded the findings of conviction and has sentenced the accused-appellant to undergo life imprisonment, therefore there is no illegality or perversity in the order of conviction passed by the trial Court and thus the impugned order of conviction does not call for any interference by the Court.
The Court noted that,
The trial Court while recording the findings of conviction has observed though hymen is found intact but according to the medical jurisprudence, in the case of girl of less than 12 years, hymen is posteriorly situated, which restricts the gender (penis) to come in contact with hymen thus it is natural that the hymen would be intact even after the commission of offence alleged furthermore, genital injuries are such that the same cannot be examined without giving anesthesia.
The trial Court considering the testimony of witnesses of fact i.e Durga Prasad and Guru Charan Singh has observed that their statements corroborate each other and they are natural witnesses. Apart from the aforesaid statements, the trial Court also considered the testimony of the victim, who appeared before the trial Court as victim. After considering the evidence adduced before the trial Court, the trial Court has convicted and awarded sentence to the accused-appellant for life imprisonment along with fine.
“We find that the statements of witnesses of fact as well as the victim do not corroborate with the medical evidence. The medical examination of the victim was conducted within six and a half hours. The specific case of the prosecution is that sexual assault was committed upon the victim. In our assessment at the tender age of six years if the victim is subjected to rape some sort of injury is bound to occur and be reflected in the medical papers or the testimony of doctor. The fact that neither any redishness was seen nor any swelling was noticed by the doctor in the private part of the victim and her hymen was found intact, coupled with the fact that there are contradictions in the manner in which the offence was observed by the witnesses, we are of the considered opinion that the prosecution has failed to prove the charges of rape levelled against him and accused is entitled to benefit of doubt,” the Court observed while allowing the appeal.
“The conviction and sentence of the accused appellant Heera by order dated 24.10.2002 passed by the Additional Sessions Judge (Fast Track ) Court, District Bulandshahr in Sessions Trial under Section 376 I.P.C Police Station Jahangirabad, District Bulandshahr, is set aside.
The accused-appellant shall be released forthwith unless he is wanted in any other case subject to compliance of Section 437-A Cr.P.C,” the Court ordered.