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ALLAHABAD HIGH COURT
Suneet Kumar and Umesh Chandra Sharma, JJ.
Lal Jeet and Tej Bahadur and Anr. – Appellants
versus
State of U.P. – Respondent
Criminal Appeal No.6192 of 2011 with Criminal Appeal No.5681 of 2011
Decided on 27.1.2023
(A) Indian Penal Code, 1860 – Section 376(2)(g) – Gang rape of girl child – Life sentence – No undue delay was caused in lodging the FIR – Present case is based on direct evidence and on evidence of victim – There is no need to prove motive behind commission of crime – Mens rea to commit alleged offence has been proved beyond reasonable doubt – There was no enmity or false implication of accused persons – Evidence of a victim of a sex offence is entitled to great weight absence of corroboration notwithstanding – Corroboration in form of eye-witness account of an independent witness may often be forthcoming in physical assault cases but such evidence cannot be expected in sex offences having regard to very nature of offence – For fault of Investigating Officer prosecution would not suffer – Trial court committed no illegality in holding accused persons guilty of committing gang rape – There are no mitigating circumstances present to reduce sentence already imposed by trial court – Order of punishment and sentence by trial court is found to be appropriate and no interference is warranted. (Paras 27, 46, 47 and 61)
(B) Indian Evidence Act, 1872 – Section 134 – Number of witnesses – No particular number of witnesses is required to prove any fact – Plurality of witnesses in a criminal trial is not the legislative intent – If testimony of a sole witness is found reliable on touchstone of credibility, accused can be convicted on the basis of such sole testimony – Court can convict accused on statement of a sole witness even if he is relative of deceased and non-examination of independent witness would not be fatal to case of prosecution. (Para 27)
(C) Indian Evidence Act, 1872 – Section 45 – Expert opinion – Doctor is a medical expert and medical evidence is only an evidence of opinion and is not conclusive – Opinion of medical officer is to assist court, he is not witness of fact, and evidence given by medical officer is of an advisory character and is not binding on witnesses of fact. (Para 33)
Result: Criminal Appeals dismissed.
JUDGMENT
Umesh Chandra Sharma, J.—These appeals have been preferred by the convicted accused appellants against the order of conviction and sentencing passed by ASJ, Court No.4, Pilibhit on 25.08.2011 in Crime No.1051 of 2010, under Section 376(2)(g) IPC, PS Newriya, District Pilibhit, whereby the accused appellants were convicted under Section 376(2) (g) IPC and were awarded life imprisonment and Rs.10,000/- fine each and in case of non-payment of fine they had to undergo for one year’s additional rigorous imprisonment.
2. Heard Sri Kuldeep Johri and Sri Ankur Singh Kushwaha, learned amicus curiae appearing for the appellants, learned AGA for the State and perused the record.
3. At the outset as per CJM report dated 11.05.2022 and the office report dated 17.11.2022 the accused-appellant, Lal Jeet has died, therefore, the appeal so far as Lal Jeet is concerned, stands abated.
4. In brief, facts of the case are that informant Tej Ram, father of the victim aged about 7 years lodged FIR in PS Newriya, District Pilibhit, alleging that on 30.09.2010 his daughter, student of class-three in primary school, Tandola, was playing outside the house at around 7 p.m. when Lal Jeet, son of Budh Sen, Tej Bahadur, son of Hori Lal, and Chintu, son of Kali Charan, residents of neighbouring Village Himmat Nagar @ Chiraindapur, on the pretext of bringing gutkha carried her to a drain situated in the east of the village and forcibly raped her. The victim did not return for a long time, her parents along with other villagers went to search with torches, and heard the victim’s scream coming from the side of the drain, then the informant, his wife Tarawati, his elder brother Ram Pal, younger brother Prem Pal and many other villagers reached there, and saw that Lal Jeet and Chintu were catching hold his daughter and Tej Bahadur was doing bad things with her. Seeing them all the three accused persons ran away leaving the victim covered in blood. In the morning all three were again seen in the village. The villagers were very angry and agitated, they caught them. The victim was taken to Kusum Hospital, Pilibhit, for treatment at night. They could not go to the police station due to lack of facilities and thereafter brought the girl and the accused to the police station. Informant requested to register the report and take necessary action.
5. On the basis of the written complaint the case was registered against all the three accused persons being Crime No.1051 of 2010, under Section 376 IPC. The Investigating Officer (I.O.) started investigation, recorded the statement of the witnesses. The victim was medically examined, X-Ray was done and supplementary medical report was prepared. Visiting the spot along with the complainant a map was drawn and the shirts and underwears of the accused were taken into possession and sent to FSL by the I.O. On finding sufficient evidence against all the three appellants a charge sheet under Section 376 IPC was submitted to the court. The case was committed to the court of sessions wherefrom the file was transferred to the concerned court.
6. On 31.01.2011 accused persons were charged under Section 376(2)(g) IPC. They denied the charge and claimed trial.
7. The prosecution examined following witnesses to prove the charges:—
(i) PW-1, informant, Tej Ram; (ii) PW-2, victim; (iii) PW-3, Dr. R.K. Maheshwari; (iv) PW-4, Constable Netra Pal Singh; (v) PW-5, Dr. Mahavir Singh; (vi) PW-6, S.O, Tapeshwar Sagar; (vii) PW-7, Dr. Vijay Laxmi.
8. The prosecution produced the following documentary evidence to prove the prosecution case:—
(i) Ex.Ka-1, written complaint; (ii) Ex.Ka-2, X-Ray report; (iii) Ex.Ka-3, chik FIR; (iv) Ex.Ka-4, photocopy GD; (v) Ex.Ka-5, report of the vaginal slide; (vi) Ex.Ka-6, map; (vii) Ex.Ka-7, recovery memo of underwear and shirt of the victim and upper cloth of the pocket of the shirt of the accused, Tej Bahadur; (viii) Ex.Ka-8, recovery memo of the blood stained underwear of the accused perso
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