The Allahabad High Court has upheld the three-year imprisonment awarded by the Kanpur Nagar sessions court to Ishrat, accused of raping a four-and-a-half-year-old girl and cutting off her private parts with a blade.
A single-judge bench of Justice Krishan Pahal passed this order while hearing a Criminal Appeal filed by Ishrat.
The Criminal Appeal under Section 374(2) of the CrPC has been preferred by accused-appellant Ishrat against the order dated 20.10.1992 passed by S.C Nigam, Seventh Additional District and Sessions Judge, Kanpur Nagar at the Police Station- Chamanganj, District- Kanpur Nagar, whereby accused-appellant was convicted u/s 324 IPC and sentenced to three years rigorous imprisonment.
He was also convicted u/s 354 IPC and sentenced to two years rigorous imprisonment.
The prosecution story, as unfolded from written report dated 29.11.1988, is that informant Shaukat Ali filed written report transcribed by Mohd Aslam, mentioning therein that on 29.11.1988 between 01:00 PM to 03:00 PM, his minor daughter aged about 4-5 years had gone to the house of one of the neighbours to play. On the same day at about 03:00 PM, some people of the locality were stated to have brought his minor daughter in a blood soaked condition from the field and informed that some unknown person had assaulted her private parts with a blade. The victim was taken to the hospital for treatment. It has also been stated in the FIR that a blood stained blade was still lying in the field.
On the basis of the written report, Chik FIR was registered on 29.11.1988 at 09:15 PM as a Case under Section 324 IPC against unknown persons. Thereafter investigation was initiated.
The investigation was taken up by the Investigating Officer Mehfooz Ali, Sub-Inspector who after recording the statement of the witnesses, preparing site plan, taking in possession the blood stained blade and other materials, arrested the appellant and prepared the arrest memo dated 1.12.1988, thereafter submitted the charge-sheet against him on 16.12.1988.
Charge against the appellant was framed by the Trial Court on 22.6.1990 u/s 324, 376/511 IPC. The appellant had claimed himself to be juvenile at the time of offence but after radiological examination, he was found to be major. The trial proceeded as such.
Thereafter, the statement of the accused-appellant under Section 313 CrPC was recorded. He has stated that the prosecution story is false. Appellant-accused Ishrat claimed that he has been falsely implicated in the case to get the house vacated.
On appreciation of evidence available before the Trial Court and after hearing parties, the Sessions Judge convicted and sentenced Ishrat.
Aarushi Khare, Amicus Curiae appearing for the appellant, has argued that the appellant has been falsely implicated in the case. The FIR is delayed by about six hours and there is no explanation for the delay. The appellant is not named in the FIR. During the investigation, his name has come up in the statement of the victim, informant and other witnesses.
Amicus Curiae has further stated that there are several contradictions in the statements of the witnesses. She has also stated that as per the statement of the mother of the victim, the victim had come to the house of the appellant walking although she has denied the said fact later on during further cross-examination.
She has further stated that the blood stained blade and the blood stained frock of the victim has not been sent for chemical examination by the Investigating Officer. This is a serious lacuna in the prosecution story. She has also stated at Bar that the offence is of 1988 and much water has flown down the river, thus, the appellant is entitled to acquittal. The witnesses are interested witnesses and the said fact stands supported by the statements of appellant recorded u/s 313 CrPC. The independent witnesses Mohd Javed and Gulshan have turned hostile. The prosecution story is falsified on account of absence of corroboration.
She has also stated that if the court is not inclined in allowing the appeal, the appellant may be released to the period of sentence already undergone.
Per contra, Vinod Kumar Singh Parmar, AGA, opposed the criminal appeal on the ground that the victim is a child of four years. The offence of cutting her private parts with a blade and also attempting to commit rape and outraging the modesty of the victim has categorically been proved by the statement of the informant and victim and has also been corroborated by the mother of the victim. There are no material contradictions in their statements. The treating doctors have also categorically corroborated the prosecution story and have even been asked about the alleged time of offence regarding the injuries sustained by the victim which further substantiate the prosecution allegations.
AGA has further stated that the FIR was naturally lodged by the appellant as it was his priority to get the victim medically examined as her private parts were found mutilated and she was not in a conscious state. The said delay stands explained by the statement of the informant. The said fact has also been corroborated by the statement of victim and Sub-Inspector Mehfooj Ali, the Investigating Officer.
AGA has further stated that in the present scenario, no independent witness is ready to depose against another person to face the ire of the accused later on in life.
The Court observed,
This is one of the most serious and diabolic offences committed against a minor girl of the tender age of four years.
It is proved beyond reasonable doubt by the statements of prosecution witnesses i.e informant, victim, Dr Sushma Singh, Dr HN Bahadur, Dr Ashok Upadhyay and Shakeel, mother of the victim that the appellant has committed the aforesaid heinous offence with the victim of tender age. In the statements of prosecution witnesses, the date, time and motive of offence also stands corroborated. The identification of the appellant in the dock has been done by the victim. The witnesses have not been cross-examined on this point by the counsel for the appellant. Even the minor contradictions that had crept up in the statement of the victim, have not been put to the Investigating Officer as per the provision of Section 145 of the Indian Evidence Act, 1872, thus, it also stands proved and unrebutted.
Now, I proceed to consider the second point for determination which is in regard to commission of any assault or criminal force by the appellant with the victim with an intent to outrage her modesty. The said point has also been proved beyond reasonable doubt by the statements of the victim and the doctors referred above.
The Trial Court has rightly taken recourse of Section 222 of CrPC wherein the allegations of commission of rape by the appellant with the victim were not found. Although the internal examination report of the victim supports it. However, the evidence regarding the commission of offence punishable under Section 354 IPC was established by the statement of the victim and, therefore, on this count, Trial Court has rightly convicted the appellant u/s 354 IPC, although, the charge was framed u/s 376/511 IPC. The accused-appellant deserved harsh punishment for the diabolic offence committed by him which depicts his depraved mental status.
The Amicus Curiae appearing for the appellant has pointed out certain discrepancies in the statements of the prosecution witnesses. On this count, the Court is of the considered view that it is but natural that minor discrepancies and contradictions may appear in the statement of witnesses. It is a settled law that in the evidence of untutored witnesses such contradictions are bound to creep in. The witnesses have not been examined in Court immediately after the offence. They have been examined after about two years of the occurrence and some trivial and minor contradictions are natural to come up in their statements as they are not bound to possess a photographic memory.
“Considering the overall facts and circumstances of the case, statement of the witnesses, relevant case laws and the fact that the offence committed by the appellant by mutilating the private part of the minor girl cannot be termed as an act of a person of normal virtues. The said offence has been committed out of severe sexual lust and sadistic approach. The appellant does not deserve any kind of leniency as the said case stands proved beyond any reasonable doubt by the statement of the prosecution witnesses and the medical evidence adduced.
It is a very sorry state of affairs that the State has not preferred any appeal against the leniency observed by the Trial Court in sentencing the appellant to such a short term. The lethargy of the public prosecutor is highly deplorable.
From the evidence available on record, it is proved beyond reasonable doubt that the accused-appellant Ishrat had committed grave offence and the lower court had rightly convicted and sentenced him. In the above circumstance, I do not find any merit in the appeal,” the Court further observed while dismissing the appeal.
“The order dated 20.10.1992 passed by SC Nigam, Seventh Additional District and Sessions Judge, Kanpur Nagar at Police Station- Chamanganj, District- Kanpur Nagar, is hereby affirmed. Bail bonds of accused-appellant are hereby cancelled and sureties are discharged from their liability. He is directed to surrender before the court below forthwith to serve out the remaining sentence and if he fails to do so, concerned Chief Judicial Magistrate shall take appropriate action in this regard,” the Court ordered.