RAGGU BANIYA @ RAGHWENDRA VS STATE OF U.P.

By way of appeal, the appellant challenged the Judgment and order dated 08.12.2009 passed by Additional Session Judge, under Sections 376 of IPC, whereby the accused-appellant was convicted under Section 376 IPC and sentenced to life imprisonment. On 24.8.2008, the prosecutrix was going alone from her house to break the cucumber in the field, when she reached, accused- Raggu Baniya @ Raghwendra caught hold of her with bad intention and he committed rape with her and on the sound of her screaming, complainant with his brother (Baburam) came running to the place of the incident and tried to nab the accused, but accused ran away from the place of offence. The complainant reached the police station for reporting the said incident as a case of rape.

Learned counsel for appellant has relied on the decisions of the Apex Court rendered in the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra, 2006 and the judgment of High Court of Andhra Pradesh in the case of Manne Siddaiah @ Siddiramulu Vs. State of Andhra Pradesh, 2000 so as to contend and submit that in fact no case is made out so as to convict the accused under Section 376 I.P.C. and the prosecutrix has roped in the accused with ulterior motive i.e. because of dispute between her father and the accused and in the alternative contended that reliance on the aforesaid decision be placed so as to demonstrate that life imprisonment is too harsh a punishment.

Learned counsel for the appellant stated that the accused is in jail since 24.8.2008. The accused who at the time of incident was a young age of 19 years he should be given chance of rehabilitation. Learned counsel for appellant relied on the decision of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and submitted that she pressed for clean acquittal of the accused. In support of his submission, he pressed the judgment in the case of Manne Siddaiah @ Siddiramulu. Learned counsel has relied on findings returned in paragraphs 14 and 15 of the said judgment, which laid down as follows :-

“14. In nutshell the version given by P.W.5 is not supported by even P.Ws. 1 and 2. P.W.1 in his evidence in categorical terms states that he caught hold of the appellant herein as his wife informed him that the appellant has raped her. P.W.5 in her evidence does not state that she has informed P.W.1 about the rape at any time. These major inconsistencies and contradictions in the evidence of material witnesses – P.Ws. 1, 2 and 5 create a lot of suspicion and doubt about the prosecution case. Added to that, P.W.10 – the Civil Assistant Surgeon who examined P.W.5, in her evidence clearly states that she did not find any external injuries on the body of P.W.5. She has also not noticed any semen and spermatozoa in the vaginal slides.

15. In the aforesaid circumstances, it would not be safe to convict the appellant herein on mere suspicion. The inconsistencies and contradictions noticed above are fatal to the case of the prosecution and create any amount of doubt. Obviously, it is the appellant who is entitled for the benefit of doubt.

9. Learned counsel for appellant pressed the judgment in the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra more particularly observations in paras 9, 10, 11 of the said judgment :-

“9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.

10. In the present case there were so many persons in the clinic and it is highly improbable the appellant would have made a sexual assault on the patient who came for examination when large number of persons were present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbablise the prosecution version.

11. The counsel who appeared for the State submitted that the presence of semen stains on the undergarments of the appellant and also semen stains found on her petticot and her sari would probablise the prosecution version and could have been a sexual intercourse of the prosecutrix.

According to prosecutrix, when she was 11 years of age and when she went with Pooja (sister of accused) for eating cucumber in the field, Raghvendra-accused sent his sister from the field to fetch water. When she also tried to leave the place, he conveyed that he would give her cucumber, he took her to the maize field, she started screaming but the accused forcibly shut her mouth by cloth and he had forcible intercourse. She was brought to the police station by her grand father. She was hospitalized for three days.

Dr. Geeta Yadav, in her ocular version mentioned that hymen was ruptured and was bleeding the vaginal smear for the determination of the age of the prosecutrix was prepared. Doctor did not give any finding of opinion about the sexual intercourse or rape committed on the prosecutrix. The prosecutirx was sent for getting her age examined by the C.M.O., Kanpur Nagar. The Injury, according to the doctor could be caused even otherwise than rape the hymen may ruptured not be because of the rap.

In respect of the victim, the doctor in medical report has opined as under :-

“In the x-Ray of both wrist A.P., all eight carpal bones were found present. The lower epiphyses of both wrist joints have not fused. In the x-Ray of both elbow joints, all the bony epiphyses around both elbow joints had fused. In her supplementary report, lady doctor opined that no spermatozoa was seen by her. According to physical appearance, age of the prosecutrix was 15 to 16 years. No definite opinion about rape was given”.

Court held that the mere fact that no external marks of injury were found by itself would not throw the testimony of the prosecutrix over board as it was found that at the time of occurrence she was a minor girl.

As far as the commission of offence under Section 376 IPC was concerned, the learned Judge relied on the judgments of (1) Rafiq Versus State of U.P., AIR 1981 SC page 559, (2) Nawab Khan Versus State, 1990 Cri.L.J. Page 1179 and the judgment in (3) Bharvada Bhogin Bhai Hirji Bhai Versus State of Gujarat, AIR 1983 SC page 753.

There were concrete positive signs from the oral testimony of the prosecutrix as regards the commission of forcible sexual intercourse. In case of Ganesan Versus State, decided on 14.10.2020 wherein the principles of accepting the evidence of the minor prosecutrix or the prosecutrix were enshrined the words may be that her testimony must be trustworthy and reliable then a conviction based on sole testimony of the victim can be based. In present case, it became clear that the testimony of the prosecutrix can be said to be that of a sterling witness and the medical evidence on evaluation prove the fact that case is made out against the accused.

On perusal of the medical report it appears that the victim was about 11 years old at the time of incident. The medical evidence should have shown some semblance of forcible intercourse if prosecutrix was gagged and hospitalised for three days and that the accused had gagged her mouth for ten minutes and had thrashed her on ground, there would have been some injuries to the fully grown lady on the basis of the body. The medical evidence goes to show that doctor did not find any sperm. The doctor opined that no signs of forcible sexual intercourse were found. This was also based on the finding that there were no internal injuries on the girl who was minor girl.

The factual data also showed that there were several contradictions in the examination-in-chief as well as cross examination of the witnesses. The prosecutrix in her examination-in-chief, she stated that incident occurred at about 9:00 a.m. but nowhere in her ocular version or the FIR, she mentioned that she was going to the fields to eat cucumber. For maintaining the conviction under Section 376 Cr.P.C., medical evidence has to be in conformity with the oral testimony.

Court was convinced that the accused has been convicted for life, hence, the judgment and order impugned was reversed and the accused was convicted for period undergone. The accused appellant, if not wanted in any other case, be set free forthwith. Appeal was partly allowed accordingly.

Reference:

https://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do

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