The Allahabad High Court upheld the three-year prison sentence handed down by the Kanpur Nagar Sessions Court against Ishrat, accused of raping a four-and-a-half-year-old girl and cutting her private parts with a blade.
A single-judge bench of Judge Krishan Pahal passed the order while hearing a criminal appeal filed by Ishrat.
The criminal appeal under Section 374(2) of the CrPC was filed by the accused-appellant Ishrat against the order of 20.10.1992 issued by S. C. Nigam, Seventh District and Additional Session Judge, Kanpur Nagar at Chamanganj District Police Station. Kanpur Nagar, whereby the accused-appellant was found guilty u/s 324 IPC and sentenced to three years rigorous imprisonment.
He was also convicted of u/s 354 IPC and sentenced to two years in rigorous imprisonment.
The prosecution story as it appears from the written report dated 29.11.1988 is that informant Shaukat Ali filed a written report transcribed by Mohd Aslam, stating that on 29.11.1988 between 1:00 p.m. and 3:00 p.m., her minor daughter aged about 4-5 years old had gone to one of the neighbors to play. On the same day around 3:00 p.m., some local people reportedly brought his minor daughter in a blood-soaked state from the field and informed that an unknown person had assaulted her private parts with a blade. The victim was taken to hospital for treatment. It was also stated in the FIR that a bloodstained blade was still in the field.
Based on the written report, Chik FIR was registered on 29.11.1988 at 9:15 p.m. as a case under article 324 IPC against unknown persons. Subsequently, an investigation was opened.
The investigation was taken over by Investigating Officer Mehfooz Ali, Sub-Inspector who, after recording the witness statement, preparing the site plan, taking possession of the bloodstained blade and other materials, arrested the appellant and prepared the arrest report dated 1.12. 1988, then filed the indictment against him on 16.12.1988.
The charge against the appellant was made by the trial court on 22.6.1990 u/s 324, 376/511 IPC. The appellant claimed to be a minor at the time of the offence, but after radiological examination, he turned out to be an adult. The trial proceeded as such.
Subsequently, the statement of the accused-appellant under article 313 CPRC was recorded. He said the prosecution’s story is false. Ishrat, accused by the appellant, claimed that he was falsely implicated in the affair to have the house evacuated.
After weighing the evidence available in the trial court and after hearing the parties, the Sessions Judge convicted and sentenced Ishrat.
Aarushi Khare, amicus curiae representing the appellant, argued that the appellant was falsely implicated in the case. The FIR is delayed by about six hours and there is no explanation for this delay. The appellant is not named in the FIR. During the investigation, his name appeared in the statement of the victim, the informant and other witnesses.
Amicus Curiae further stated that there were several contradictions in the witness statements. She also testified that according to the victim’s mother’s statement, the victim came to the appellant’s house walking although she denied said fact later on further cross-examination.
She further stated that the victim’s bloodstained blade and bloodstained robe were not sent for chemical examination by the investigating officer. This is a serious flaw in the prosecution’s account. She also testified that the offense is from 1988 and that a lot of water has flowed in the river, so the appellant is entitled to an acquittal. The witnesses are interested witnesses and said fact is supported by the statements of the appellant recorded u/s 313 CrPC. Independent witnesses Mohd Javed and Gulshan became hostile. The prosecution’s account is falsified for lack of corroboration.
She also said that if the court is not inclined to allow the appeal, the appellant can be freed for the sentence period already served.
On the other hand, Vinod Kumar Singh Parmar, AGA, opposed the criminal remedy on the grounds that the victim is a four-year-old child. The offense of having cut his private parts with a blade and also of attempted rape and indecent exposure of the victim was categorically proven by the statement of the informant and the victim and was also corroborated by the victim’s mother. There are no material contradictions in their statements. The treating physicians also categorically corroborated the prosecution’s account and were even questioned about the alleged time of the offense regarding the injuries sustained by the victim, further supporting the prosecution’s allegations.
AGA further stated that the FIR was naturally filed by the Appellant as his priority was to have the victim medically examined as her private parts were found mutilated and she was not in a conscious state. Said delay is explained by the informant’s statement. The said fact was also corroborated by the statement of the victim and of sub-inspector Mehfooj Ali, the investigating officer.
AGA further stated that in the current scenario, no independent witness is willing to testify against another person to face the wrath of the accused later in life.
The Court observed,
This is one of the most serious and diabolical offenses committed against an underage girl at the age of four.
It is proven beyond a reasonable doubt by the statements of Prosecution witnesses, namely the informant, the victim, Dr. Sushma Singh, Dr. HN Bahadur, Dr. Ashok Upadhyay and Shakeel, the victim’s mother, that the appellant committed the above heinous offense with the infant victim. . In the statements of prosecution witnesses, the date, time and motive for the offense are also corroborated. The identification of the appellant in the dock was made by the victim. The witnesses were not cross-examined on this point by counsel for the appellant. Even the minor contradictions that had crept into the victim statement were not submitted to the investigator as per the provision of Section 145 of the Indian Evidence Act 1872, hence they are also proven and irrefutable.
I now turn to the consideration of the second point to be decided, which concerns the commission of an assault or a criminal act by the appellant with the victim with the intent to outrage his modesty. This point has also been proven beyond a reasonable doubt by the statements of the victim and the doctors mentioned above.
The court of first instance rightly resorted to article 222 of the CrPC in which the allegations of commission of rape by the appellant with the victim were not founded. Although the victim’s internal examination report backs it up. However, the evidence regarding the commission of an offense punishable under IPC Section 354 was established by the victim impact statement and therefore on this count the trial court rightly convicted the appellant u/s 354 IPC, although the charge was made u/s 376/511 CIB. The accused-appellant deserved severe punishment for the diabolical offense he had committed which depicts his depraved mental state.
The Amicus Curiae representing the appellant noted certain inconsistencies in the statements of the prosecution witnesses. On this point, the Court is of the opinion that it is only natural that minor discrepancies and contradictions may appear in the statements of the witnesses. It is a well-established law that in the testimony of uninformed witnesses such contradictions must inevitably creep in. Witnesses were not questioned in court immediately after the offence. They were examined approximately two years after the event and some trivial and minor contradictions are natural in their statements because they are not required to possess a photographic memory.
“Given all the facts and circumstances of the case, the witness statements, the relevant case law and the fact that the offense committed by the appellant in mutilating the intimate part of the minor girl cannot be characterized as an act of a person of normal virtues. Said offense was committed due to severe sexual desire and sadistic approach. The appellant does not deserve any kind of leniency as the said matter is proven beyond reasonable doubt by the statement of the prosecution witnesses and the medical evidence produced.
It is very regrettable that the State preferred no recourse against the leniency observed by the Court of First Instance in sentencing the appellant to such a short sentence. The lethargy of the prosecution is highly deplorable.
Based on the evidence available in the record, it is proven beyond a reasonable doubt that the accused-appellant Ishrat had committed a serious offense and that the trial court had rightly convicted and sentenced him. . In the above circumstances, I find no merit in the appeal,” the Court further observed in dismissing the appeal.
“The order dated 20.10.1992 passed by SC Nigam, Seventh District and Additional Session Judge, Kanpur Nagar at Chamanganj Police Station, Kanpur Nagar District is hereby affirmed. The bail bonds of the accused- appellant are vacated and the sureties are released from liability.He is ordered to proceed immediately to the lower court to serve the remaining sentence and if he fails to do so, the relevant Chief Judicial Magistrate will take appropriate action in this regard. respect,” the court ordered.