The Allahabad High Court after finding the testimony of the victim to be reliable, upheld the conviction of a man who raped a 10-year-old girl in the year 1979.
A Single Bench of Justice Samit Gopal passed this order while hearing a Criminal Appeal filed by Om Prakash.
The appeal under Section 374 CrPC has been filed by the appellant Om Prakash against the order dated 02.07.1982 passed by III Additional District and Sessions Judge, Meerut by which he has been convicted and sentenced under Section 376 IPC to undergo six years rigorous imprisonment.
The prosecution case as per an application dated 04.10.1979 given by Bakreeda (father of the victim) to the police of which Dharmapal is the scribe is that on that day at about 12:00 noon his daughter victim aged about 10 years was mowing grass in the field of Kaliram in the jungle of village Jivana.
Om Prakash son of Sukhvirey Kumhar forcibly caught hold of his daughter and took her to the jwar field and committed rape on her on which she started shouting, hearing which Dharmapal Singh son of Ram Swarup Jaat, his son Ayyub and Hashim son of Kutubuddin Darji of his village who were working in the field went to the place of occurrence and saw the accused doing the act. They reached near on which Om Prakash ran away. He was chased but could not be apprehended. He has brought his daughter (victim) for lodging of the report. She is bleeding from her private part. His report be lodged and legal action be taken.
On the basis of the said application, a First Information Report was lodged on 04.10.1979 at 17:10 hrs as Case under Section 376 IPC, Police Station Binoli, District Meerut against the accused-appellant Om Prakash son of Sukhvirey.
The investigation concluded and a Charge Sheet dated 04.12.1979 under Section 376 IPC against the accused-appellant was submitted.
Counsel for the appellant argued that the doctor conducting the medical examination of the victim and also preparing the supplementary medical examination report and the Investigating Officer of the case have not been examined. The same is a big dent to the prosecution by not examining them.
It is next argued that the injuries as received by the victim noted by the doctor in the medical examination report was due to an accident.
It is further argued that Dharampal and Hashim the alleged eye witnesses of the incident as per the First Information Report, have not been produced in the trial and as such there is no independent witness to support the prosecution case.
It is also argued that the accused was opined to be looking about 28 years old at that time as observed and mentioned by the trial court in his statement under Section 313 CrPC which was recorded on 25.06.1982 and even looking to the same he is now about 68 years of age as the said statement was recorded about 40 years back.
Counsel for the appellant said that the incident in the case is of the year 1979 and 43 years have passed since then and as such sending the appellant to jail now, would be too harsh as he is about 68 years as of now.
Per contra, Counsel for the State opposed the arguments of the counsel for the appellant and argued that the prosecution has proved its case beyond reasonable doubt. The First Information Report was lodged on the same day. The medical examination report of the victim shows fresh bleeding injury present in her vagina and supplementary medical examination report opines that it is a case of rape. Victim was aged about 10 years and was a child. The appellant is named in the First Information Report, statement of victim and the other witnesses and the role is consistent throughout. The prosecution has been successful in proving that rape has been committed upon victim and the evidence as produced without any doubt shows the involvement of the appellant. The appeal deserves to be dismissed.
The Court observed that,
After having heard counsel for the parties and perusing the records, it is evident that the appellant is named in the First Information Report. The victim is stated to be about 10 years of age in the First Information Report and also stated to be of the same age in the supplementary medical examination report by the doctor. The medical examination of the victim shows injuries on her vagina. The doctor did not give any opinion about rape when she had medically examined the victim but in the supplementary medical examination report gave an opinion that it is a probable case of rape according to the examination. The factum of rape thus does not remain uncorroborative, it finds support from the medical evidence also. The age of the victim as stated by her father in the FIR also, in his statement and further from the opinion as arrived upon through radiological examination, she was aged about 10 years and was a child.
The argument of the counsel for the appellant that the doctor conducting the medical examination of the victim, preparing the supplementary medical examination report and also the Investigating Officer of the case have not been examined which would dent the prosecution case is fallacious. The Chik FIR, the recovery memo of blood stained clothes of victim, her medical examination report, the supplementary medical examination report, the site plan of the place of occurrence and the charge sheet of the matter which are on record go to show that the genuineness of all the said documents have been admitted by the defence and as such now stating that the doctor and the Investigating Officer were not being examined by the prosecution, would render the prosecution story and the entire trial doubtful does not hold good.
Further, the argument of the counsel for the appellant that the accused-appellant as of now is aged about 68 years as per observation of the trial court in his statement recorded under Section 313 CrPC, it is stated that the age of the appellant will have no effect on the question of sentence and also on the conviction of the appellant. If the case has been proved beyond reasonable doubt, an adequate sentence has to be awarded to him. It is trite law that inadequacy of sentence is not in the interest of justice and if a person has been convicted and there is evidence beyond reasonable doubt about the same adequate sentence has to be awarded to him.
Thus applying the principles of law with regards to the sentencing of the appellant, it is clear that lack of sufficient time and the age of the accused cannot be a ground to extend any benefit to him in the crime committed by him.
“From the discussions as stated above it is evident that the prosecution has succeeded in proving the case beyond reasonable doubt against the accused-appellant. The version of the first informant and the victim regarding rape being committed on her by the accused-appellant does not get dented throughout the case. The medical evidence corroborates with the prosecution version. The opinion of the doctor also states of rape being committed on her. The victim was aged about 10 years at that time. The same has also not been a matter of challenge by the accused-appellant’, the Court further observed while dismissing the appeal.
“The judgment and order of conviction of the trial court is upheld. The appellant is on bail. He shall be taken into custody to serve out the sentences awarded to him by the trial court”, the Court ordered.