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2012 DIGILAW 105 (UTT)

HAYAT SINGH v. STATE OF UTTARANCHAL

2012-03-12

PRAFULLA C.PANT

body2012
JUDGMENT Heard. 2. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order dated 03.07.2010, passed by, Sessions Judge, Bageshwar, in Sessions Trial No. 01 of 2010, where by the said court has, convicted the accused/appellant Hayat Singh, under Section 376 and 452 of I.P.C. The convict has been sentenced under Section 376 I.P.C. to rigorous imprisonmentfor a period of ten years, and directed to pay a fine of Rs. 10,000/- in default of payment of which,’ he Is further directed to undergo one year’s simple imprisonment. He has been sentenced under Section 452 of I.P.C. to rigorous payment of which, he is required to undergo sixinonths simple imprisonment. 3. Heard leamed counsel for the parties, and perused the lower court record, 4. Prosecution story, in brief, is that on 30.11.2009, at about 9.00 p.m. PW-1 Ms. Geeta, aged 15 years, came out of her house in Village Talli Dwari, to ease out herself. She was caught by accused/appellant Hayat Singh, who took her to another room of her house and committed rape on her. While, the accused/appellant was committing rape, the girl shouted for help, on which, PW-2 Hansi Devi (sister-in-law of victim), PW-5 Maghan Singh (complainant and father of the victim) and Anandi (mother of the victim) came and started knocking doors of the room, where the victim was subjected to rape. Accused/appellant Hayat Singh escaped by pushing the mother of the victim after opening the door. On 01.12.2009, PW-5 Maghan Singh attempted to get lodged report with the Patwari of the area. (In Uttarakhand hills certain Revenue Officials are given police powers). However, when even after repeated visits, no report was registered, he (PW-5 Maghan Singh) went to Police Station-Bageshwar,and got lodged the First Information Report on 06.12.2009 (Ex.A5). On the basis of said report, Crime No. 82 of 2009, was registered, relating to offences punishable under Section 376 and 452 of I.P.C., against the accused/appellant Hayat Singh. PW-7 Sub-lnspector Bhagwati Prashad Bist took up investigation. He got the victim medically examined on the very day i.e. 06.12.2009, in District Hospital, Bageshwar. Statement (Ex.A1) of the girl was got recorded on 09.12.2009, before the Magistrate under Section 164 of Cr.P.C. On radiological examination by PW-4 Dr. Khempal, the girl was found aged between 14-16 years. PW-7 Sub-lnspector Bhagwati Prashad Bist took up investigation. He got the victim medically examined on the very day i.e. 06.12.2009, in District Hospital, Bageshwar. Statement (Ex.A1) of the girl was got recorded on 09.12.2009, before the Magistrate under Section 164 of Cr.P.C. On radiological examination by PW-4 Dr. Khempal, the girl was found aged between 14-16 years. The Investigating Officer, after interrogating the witnesses, and on completion of investigation, submitted charge sheet (Ex.A 10) against the accused/appellant Hayat Singh for his trial, in respect of offences punishable under Section 376 and 452 of I.P.C. 5. The In-charge Chief Judicial Magistrate, Bageshwar, on receipt of the charge sheet, and after giving necessary copies to the accused, as required under Section 307 of, Cr.P.C. committed the case to the court of Sessions for trial. Learned Sessions Judge, Baqeshwar, on 28.01.2010, after hearing the parties, framed charge of offences punishable under Section 376 and 452 of I.P.C., against the accused/appellant Hayat Singh, to which, the accused pteaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Ms. Geeta (Victim), PW-2 Hansi Devi (sister-in-law of the victim), PW-3 Dr. Reema Upadhyay (who conducted medical examination of the victim) PW-4 Dr. Khem Pal (Radiologist), PW-5 Maghan Singh (complainant and father of the victim), PW-6 Head Constable of Police Dev Nath (who prepared check report of F.I.R.) and PW-7 Sub-Inspector Bhagwati Prasad Bist (Investigating Officer). Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which, he alleged that due to enmity false evidence has been adduced. However, no evidence in defence was got recorded. The trial court after hearing the parties found that charge of offences punishable under Section 376 and 452 of I.P.C. has been proved beyond reasonable doubt against the accused/appellant Hayat Singh. Accordingly, he was convicted and after hearing of sentence, sentenced to rigorous imprisonment for a period of ten years, and directed to pay a fine of Rs. 10,000/- under section 376 of I.P.C., and rigorous imprisonment for the period of five years and directed to pay a fine of Rs. 5000/- under Section 452 of I.P.C. Aggrieved by said judgment and order dated 03.07.2010, passed by Sessions Judge, Bageshwar, the convict preferred this appeal. 6. Before further discussion, it is just and proper to discuss the evidence on record, relating to the age of the girl. PW-4 Dr. 5000/- under Section 452 of I.P.C. Aggrieved by said judgment and order dated 03.07.2010, passed by Sessions Judge, Bageshwar, the convict preferred this appeal. 6. Before further discussion, it is just and proper to discuss the evidence on record, relating to the age of the girl. PW-4 Dr. Khem Pal has stated that on 06.12.2009, he got X-Ray done of wrists and elbows of both the hands of Ms. Geeta (PW-1) and after preparing X-Ray plates, he came to the conclusion that the girl was aged between 14 to 16 years. Nothing has come out in his cross-examination which creates doubt in his evidence. His statement read with evidence given by PW-1 Ms. Geeta and PW-4 Dr. Khem Pal establishes on record that the girl was aged 15 years. 7. Once it is established on record that the girl was aged 15 years (i.e. less than 16 years) on the day of incident, her consent for sexual intercourse loses its importance. Now this Court has to examine, whether it is proved on the record that accused/appellant Hayat Singh committed rape on the victim as suggested by the prosecution or not. 8. PW-1 Ms. Geeta has stated that on 30.11.2009, at about 9.00 p.m. she had gone to ease herself out, as mere was no toilet inside her house. The witness further narrated that accused/appellant Hayat Singh who is her neighbour closed her mouth and picked her up and took her in another room of her house, where he committed rape on her. PW-1 Ms. Geeta further narrated that she shouted for help, on which, her father PW-5 (Maghan Singh) along with her mother and sister-in-law came and started knocking the doors. The witness further stated that when her father was about to break open the door accused/appellant opened another door and after pushing her mother, ran away. The statement of the girl was also recorded by the Magistrate under Section 164 of Cr.P.C., on 09.12.2009, which has also been proved on record as Ex. A1. Her statement is consistent as against the accused/appeltant. She was subjected to lengthy cross-examination, but there is nothing on the record, which creates doubt in her testimony. 9. Above statement of the victim is not only corroborated from her statement under Section 164 of Cr. A1. Her statement is consistent as against the accused/appeltant. She was subjected to lengthy cross-examination, but there is nothing on the record, which creates doubt in her testimony. 9. Above statement of the victim is not only corroborated from her statement under Section 164 of Cr. P. C., but also from the statement of PW-2 Hansi Devi (sister-in-law.of the victim) and PW-5 Maghan Singh (complainant and father of the victim). The presence of these two witnesses in their house is natural and cannot be doubted. As far as the medical examination report is concemed, though no opinion as to the commission of rape is giverrand it is obsetved that two fingers easily passed in vagina, but that does not help the accused/appellant in the present case. It is pertinent to mention here that the girl was got medically examined only after about six days of the incident. After such a long time, there was no possibllity of presence of spermatozoa or mark of any bruise and abrasion. 10. On behalf of the appellant, it is argued that First Information Report is highly belated one, and had there been commission of rape, in the manner suggested by the prosecution, either victim or her father would have lodged First 1nformation Report much earlier. On careful scrutiny of the evidence on record, this Court concurs with the view taken by the trial court that though there is delay in lodging of the First Information Report, but same is well explained on the record. PW-5 Maghan Singh has stated that he made.every effort to get lodged the First Information Report with Patwari of the area on 01.12.2009, but even after his several visits to him, the report was not registered. The witness has further stated that he was compelled to go to regular Police, where he lodged the First Information Report on 06.12.2009. 11. It is contended on behalf of the appellant that there is serious flaw in the investigation of the case, as the clothes of the girl were not sent for chemical analysis, and it is not proved on the record that there was stain of semen in the clothes. 11. It is contended on behalf of the appellant that there is serious flaw in the investigation of the case, as the clothes of the girl were not sent for chemical analysis, and it is not proved on the record that there was stain of semen in the clothes. On going through the evidence on record, this Court finds that there is some lapse on the part of the Investigating Officer, in not getting the clothes chemically examined, but that by itself in the present case, is not sufficient, to create reasonable doubt in the prosecution story. Apart from this, for constituting offence of rape, it is not necessary that accused must have discharged semen before leaving the place. 12. Lastly, it is argued that even if it is presumed that the accused had sexual intercourse with the girl, it appears to be a case of consensual sex. I have considered submissions advanced on behalf of the appellant. Had it been a case of sexual intercourse with a girl aged 16 years or more, the factum of consent could have been relevant. But considering the sixth clause in the definition of rape given in Section 375 of I.P.C., even if it was a consensual sex, the accused/appellant is still liable to be held guilty, as the girl was aged less than 16 years. 13. In the above circumstances, so far as the conviction of the appellant is concerned, the same requires no interference, and to that extent the appeal is liable to be dismissed. However, on the point of sentence, in the facts and circumstances, this Court is of the view that sentencing the accused/appellant Hayat Singh to rigorous imprisonment for a period of, seven years,under Section 376 of I.P.C., and rigorous imprisonment for a period of three years, under Section 452 of I.P.C., would meet the ends of justice. 14. Accordingly, this appeal is disposed of, with the direction that the conviction of the appellant HayatSinqh, recorded by the trial court is affirmed, but the sentence is reduced to rigorous imprisonment for a period of seven years under Section 376 of I.P.C., and rigorous imprisonment for a period ofthree years under Section 452 of I.P.C. Both the sentences shall run concurrently. The period spent by the accused/appellant, who is in jail, shall be setoff from the sentence modified by this Court. The period spent by the accused/appellant, who is in jail, shall be setoff from the sentence modified by this Court. The direction to pay fine shall stand set aside. 15. Let a copy of this judgment be sent to the Superintendent of the jail concerned. Lower court record be sent back.