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2012 DIGILAW 771 (UTT)

Jagdish Arya v. State of Uttarakhand

2012-12-17

PRAFULLA C.PANT

body2012
JUDGMENT 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 13-7-2012, passed by Additional Sessions Judge/II Fast Track Court, Nainital, in Sessions Trial No. 45 of 2011, whereby said court has convicted accused/appellant Jagdish Arya alias Jagdish Kaliya under Section 342 and 376, IPC. He has been sentenced to simple imprisonment for a period of six months and directed to pay fine of Rs.500/- under section 342 IPC and rigorous imprisonment for a period of seven years and directed to pay fine of Rs.5,000/- under Section 376 IPC. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story in brief is that on 12.12.2010, P.W.1 Kailash Chandra Arya gave first information report (Ex. A1) at 7:30 p.m., at police station Kotwali Haldwani, District Nainital, alleging that on said date at about 6:30 p.m., accused Jagdish Arya alias Jagdish Kaliya called his minor sister Guddi to fetch a pack of BIRI whereafter he (Jagdish Arya) closed the door of his room from inside and attempted to commit rape on her. It is further alleged in the first information report that Guddi (P.W.3) shouted on which people from neighbourhood had gathered, broke opened the door. On the basis of said report FIR No. 563 of 2010, was registered against accused Jagdish Arya alias Jagdish Kaliya relating to offences punishable under section 342 and 376/511 IPC. The investigation was taken up by Sub Inspector K.C. Joshi (P.W.7) the girl was taken to hospital for her medical examination. P.W.6 Dr. Anita Bhatt medically examined the girl (Guddi) on the very day (12.12.2010) at 10:00 p.m. She observed in her medical report (Ex. A3) that there were no marks of injury, laceration or bleeding. However, the hymen was not intact and vagina was admitting only one finger. The medical officer did not find any redness etc., in the private parts. For determination of the age X-ray was advised, and after X-ray P.W.6 Dr. Anita Bhatt prepared supplementary report (Ex. A4) opining that the girl was aged between 14-16 years. However, she further opined in her supplementary report that the girl had underwent sexual intercourse without mentioning as to when she had underwent the same. For determination of the age X-ray was advised, and after X-ray P.W.6 Dr. Anita Bhatt prepared supplementary report (Ex. A4) opining that the girl was aged between 14-16 years. However, she further opined in her supplementary report that the girl had underwent sexual intercourse without mentioning as to when she had underwent the same. It appears that on 13.12.2010, statement of the girl (P.W.3 Guddi) was got recorded under section 164 Cr.P.C., before the Civil Judge (Jr. Div.)/ Judicial Magistrate, Haldwani. After interrogating the witnesses, and on completion of investigation P.W.8 S.I. S.K. Pande to whom investigation was transferred, submitted charge sheet (Ex. A8) against accused Jagdish Arya alias Jagdish Kaliya for his trial in respect of offences punishable under section 342 and 376 IPC. 4. Learned Additional Chief Judicial Magistrate, Haldwani, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr. P.C., appears to have committed the case to the court of Session for trial. On 04.05.2011, learned Additional Session Judge/ II Fast Track Court, Nainital, after hearing the parties framed charge of offences punishable under section 342 and 376 IPC, against accused Jagdish Arya alias Jagdish Kaliya to which he pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Kailash Chandra Arya (informant), P.W.2 Kheem Lal (a neighbour of accused Jagdish Arya), P.W.3 Guddi Arya (victim), P.W.4 Suresh Arya (Father of the victim), P.W.5 Khasti Devi (neighbour of the girl and accused), P.W.6 Dr. Anita Bhatt (who medically examined the girl), P.W.7 S.I. Kailash Chandra Joshi (who started the investigation), P.W.8 S.I. S.K. Pande (who completed the investigation) and P.W.9 Constable? clerk Gopal Sanwal (who prepared check report of FIR). The oral and documentary evidence was put to the accused under section 313 Cr. P.C., in reply to which he alleged that evidence adduced against him was false. However he admitted that some people caught hold of him and handed over him to police. No evidence in defence was adduced. The trial court, after hearing the parties found that prosecution has successfully proved charge of offences punishable under section 342 and 376, IPC, against accused Jagdish Arya and convicted him accordingly. However he admitted that some people caught hold of him and handed over him to police. No evidence in defence was adduced. The trial court, after hearing the parties found that prosecution has successfully proved charge of offences punishable under section 342 and 376, IPC, against accused Jagdish Arya and convicted him accordingly. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs.5,000/- under section 376 IPC and simple imprisonment for a period of six months and directed to pay fine of Rs.500/- under section 342, IPC. Aggrieved by said judgment and order dated 13.7.2012, passed by Additional Sessions Judge/ II Fast Track Court, Nainital, in Sessions Trial No. 45 of 2011, this appeal was got filed by the convict. 5. Before further discussion, this Court thinks it just and proper to mention the observations made by P.W.6 Dr. Anita Bhatt after medically examining the girl Guddi (P.W.3) on 12.12.2010 at 10:00 p.m. The observations made in the medical report (Ex. A3) prepared by said medical officer are reproduced below:- "No marks of injury, lacerations and any bleeding. Hymen was not intact, admitting one finger. Cervical OS is closed. No redness present. No injury, no bleedings per veginom present" From the medical report (Ex. A3) it further appears that P.W.6 Dr. Anita Bhatt advised X-ray of right wrist and right elbow for determination of the age of the girl. Also, vaginal smear slides were got sent for examining spermatozoa. Supplementary report (Ex. A4) prepared by P.W.6 Dr. Anita Bhatt discloses that after X-ray report was received, it was found that the age of the girl is between 14-16 years. However, it is further observed that though there was no bleeding, no injury, no lacerations and no redness in the private parts but the girl appears to have undergone sexual intercourse. 6. The star witness of this case is P.W.3 Guddi Arya, the girl said to have been raped. She has stated in her statement that accused Jagdish Arya alias Jagdish Kaliya committed rape on her but in the second para of her statement it is clear that she has simply stated that accused attempted to commit rape on which she shouted and the members came there and broke open the door. She has stated in her statement that accused Jagdish Arya alias Jagdish Kaliya committed rape on her but in the second para of her statement it is clear that she has simply stated that accused attempted to commit rape on which she shouted and the members came there and broke open the door. This statement on the part of the victim clearly shows that allegation of commission of rape is an improvement made by the prosecution. The first version of the incident given in the FIR (Ex. A1) lodged by P.W.1 Kailash Chandra Arya (brother of the victim). In the FIR there is only allegation of attempt to commit rape after closing the door from inside. That is why it appears that police also registered case only in respect of offences punishable under section 342 and 376 read with section 511 IPC. Even the medical report (Ex. A3) prepared by P.W.6 Dr. Anita Bhatt does not suggest commission of rape as there was neither any external nor any internal injury on the private parts of the girl. 7. P.W.2 Kheem Lal (a neighbour) P.W.4 Suresh Arya (father of the girl), P.W.5 Khasti Devi (neighbour) only corroborate the fact that after the girl shouted inside the room, the room of accused was broken and the girl (Guddi) was rescued, and accused Jagdish Arya alias Jagdish Kaliya was apprehended. 8. From the evidence on record, it is clearly established beyond reasonable doubt that accused Jagdish Arya alias Jagdish Kaliya attempted to commit rape as he called the girl inside the room, bolted the door and thereafter when he was attempting to commit rape the girl shouted where upon the neighbours rushed, broke open the door and rescued the girl but the allegation that accused committed rape on the girl does not get corroborated either from the medical evidence on the record or from the version given in the first information report or from the statements of the witnesses. P.W.3 Guddi herself in her statement though alleges that she was subjected to rape but in the second para she states that accused only attempted to commit rape. That being so, what has been proved by the prosecution is the charge of offence punishable under section 376 read with section 511, IPC, and not the offence punishable under section 376 IPC, apart from the offence punishable under section 342 IPC. 9. That being so, what has been proved by the prosecution is the charge of offence punishable under section 376 read with section 511, IPC, and not the offence punishable under section 376 IPC, apart from the offence punishable under section 342 IPC. 9. For the reasons as discussed above, and the evidence on record, this Court find accused Jagdish Arya alias Jagdish Kaliya guilty of charge of offences punishable under section 342 and 376 read with section 511 IPC, and as such conviction of the accused/ appellant Jagdish Arya alias Jagdish Kaliya under section 376 IPC is liable to be set aside. Accordingly, the appeal deserves to be allowed partly. 10. The appeal is partly allowed. Conviction and sentence recorded by the trial court against accused Jagdish Arya alias Jagdish Kaliya under section 342 IPC is hereby affirmed. However, his conviction and sentence recorded by the trial court under section 376 IPC is set aside. Instead accused/ appellant Jagdish Arya alias Jagdish Kaliya is convicted under section 376 read with section 511 IPC, and sentenced to rigorous imprisonment for a period of three and half years out of which the period already undergone shall be adjusted. Both the sentences (under section 342 and 376/511 IPC) shall run concurrently. The accused/ appellant Jagdish Arya alias Jagdish Kaliya is in jail. He shall serve the remaining part of the sentence as modified by this Court. Lower court record be sent back. Appeal partly allowed.