Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 100 (UTT)

Suresh v. State of Uttaranchal

2013-03-05

PRAFULLA C.PANT

body2013
ORDER This appeal, preferred under section 374 of Code of Criminal Procedure, is directed against the judgment and order dated 21.01.2003, passed by learned Additional Sessions Judge/ II Fast Track Court, Udham Singh Nagar, in Sessions Trial No. 237 of 1999, whereby said court has convicted accused/ appellant Suresh under sections 376 and 452 IPC. The convict (appellant) has been sentenced to rigorous imprisonment for a period of seven years under section 376 IPC and rigorous imprisonment for a period of two years under section 452 IPC. 2. Heard learned counsel for the appellant, and learned A.G.A., for the State and perused the lower court record. 3. Prosecution story in brief is that on 02.04.1999, at about 10:00 p.m., P.W.1 Sohan Lal was coming back with one Hemraj and Ramesh from the house of his neighbour Durga Prasad where he had gone to watch T.V. He (P.W.1) heard shrieks of his wife Rajkumari (P.W.2), who was deaf and dumb. P.W.1 Sohan Lal immediately rushed along with neighbours to his house where he saw that accused Suresh (S/o Ram Gulam Balmiki) was committing rape on his wife. On seeing P.W.1 Sohan Lal and others, accused attempted to flee but he was caught and taken to police station. First information report (Ex. A1) of the incident was lodged in the intervening night of 02.04.1999/ 03.04.1999 at about 1:00 a.m., at Police Station Kotwali Rudrapur. On the basis of said report crime No. 387 of 1999 was registered relating to offences punishable under sections 376 and 452 IPC against accused Suresh. After taking accused into their custody police took into their possession underwear of the accused Suresh, and petticoat of P.W.2 Rajkumari (victim) and prepared recovery memorandums Ex. A2 and Ex. A3 respectively. P.W.2 Rajkumari was taken to Jawahar Lal Nehru Hospital, Rudrapur, where she was medically examined by P.W.3 Dr. Amita Upreti. The medical officer prepared medical report (Ex. A4). She observed that no injury was seen on the person of the victim. The investigation of the case was taken up by P.W.4 S.I. Rakesh Singh who interrogated the witnesses, inspected the spot and submitted charge sheet (Ex. A6) against accused Suresh (S/o Ram Gulam Balmiki) for his trial in respect of offences punishable under sections 376 and 452 IPC. 4. The investigation of the case was taken up by P.W.4 S.I. Rakesh Singh who interrogated the witnesses, inspected the spot and submitted charge sheet (Ex. A6) against accused Suresh (S/o Ram Gulam Balmiki) for his trial in respect of offences punishable under sections 376 and 452 IPC. 4. The Chief Judicial Magistrate, on receipt of the charge sheet, and after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of sessions for trial. On 01.10.1999, learned Sessions Judge, Udham Singh Nagar, after hearing the parties framed charge of offences punishable under sections 452, 376 IPC against accused Suresh who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Suresh (informant), P.W.2 Rajkumari (victim), P.W.3 Dr. Amita Upreti (who medically examined the victim) and P.W.4 S.I. Rakesh Singh (who investigated the crime). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the accused pleaded that he has been falsely implicated due to enmity. However, no evidence in defence was adduced. After hearing the parties, the trial court found that charge of offences punishable under sections 452 and 376 IPC are proved against the accused Suresh beyond reasonable doubt. Accordingly, he (Suresh) was convicted, and after hearing on sentence, the trial court sentenced him to rigorous imprisonment for a period of seven years under section 376 IPC and rigorous imprisonment for a period of two years under section 452 IPC. Aggrieved by said judgment and order dated 21.01.2003, passed by learned Additional Sessions Judge/ II Fast Track Court, Udham Singh Nagar, in Sessions Trial No. 237 of 2009, this appeal was preferred by the convict. 5. Before further discussion, this Court thinks it just and proper to mention the observations made by P.W.3 Amita Upreti after she medically examined P.W.2 Rajkumari on 03.04.1999. The relevant observations are being reproduced from the medical report (Ex. A 4):- "Average built woman 153cm. height. Teeth 16/16. Breast and axillary, pubic hair well developed. No injury seen all over the body at the time of examination. On per vagina examination:-? two fingers easily inserted inside the vagina. No injury seen over the genitalia at the time of examination. A 4):- "Average built woman 153cm. height. Teeth 16/16. Breast and axillary, pubic hair well developed. No injury seen all over the body at the time of examination. On per vagina examination:-? two fingers easily inserted inside the vagina. No injury seen over the genitalia at the time of examination. Hymen absent." The above mentioned medical report does not suggest either way as to the fact whether the rape was committed on the woman (P.W.2 Rajkumari) or not. 6. In the above circumstances, statement of P.W.2 Rajkumari is required to be seen carefully. P.W.2 Rajkumari is a deaf and dumb witness. The trial court has recorded her statement in the questions and answers form taking help of her husband (P.W.1 Sohan Lal) for interpreting her answers. In her statement, P.W.2 Rajkumari has stated that it was 10:00 p.m., on the day of incident when accused Suresh committed rape on her. She told that the accused was arrested at the spot with the help of neighbours. She further told that her petticoat was given to police. In the cross-examination she told that there was electric light in the house. She further told that the door of the house was open. On further examination she told that her house situated in the neighbourhood of five to six persons. She further told that on hearing shrieks, her neighbours also rushed to the spot. She also told that she resisted the commission of rape by the accused and attempted to nail her teeth on the hand of the accused. She denied the suggestion made on behalf of the accused that she was not subjected to rape. 7. Statement of P.W.2 Rajkumari is fully corroborated by informant P.W.1 Sohan Lal who told the court that when he was coming back at 10:00 p.m., on 02.04.1999 from the house of Durga Prasad with Hemraj and Ramesh after watching T.V., he heard shrieks of her wife Rajkumari. The witness has further narrated that he along with neighbours rushed to his house and saw accused Suresh committing rape. The witness has further told that accused Suresh was arrested at the spot with the help of neighbours while fleeing. This witness has proved FIR (Ex.A1) lodged by him at the police station. He further proved the recovery memo (Ex.A2) which was prepared by police after taking underwear of accused Suresh in their custody. The witness has further told that accused Suresh was arrested at the spot with the help of neighbours while fleeing. This witness has proved FIR (Ex.A1) lodged by him at the police station. He further proved the recovery memo (Ex.A2) which was prepared by police after taking underwear of accused Suresh in their custody. P.W.1 Sohan Lal further proved recovery memo (Ex. A3) relating to the fact that the petticoat was handed over to the police by the victim. This witness has also been subjected to lengthy examination but nothing has come in his statement which creates reasonable doubt in the prosecution story. It has also come on the record that accused Suresh is also resident of same locality Bhoot Bangla where hut of the victim was situated. 8. After re-appreciating the entire evidence on record, and on careful scrutiny of the statement of P.W.2 Rajkumari in which the trial court has made observations as to the signs made by the witness this Court is convinced that prosecution has successfully proved charge of offences punishable under section 452 IPC, and offence punishable under section 376 IPC against accused Suresh (S/o Ram Gulam Balmiki). 9. Learned counsel for the appellant drew attention of this Court to the site plan (Ex. A5) on the record, and submitted that it is hard to believe that the victim had kept door open at the odd hours. However, this Court does not find substance in the argument advanced on behalf of the appellant for the reason that the house in which the crime was committed is a hut and not a building. Secondly, husband of the victim was about to come to the house as such there is nothing abnormal if the door was kept open at the time of the incident. 10. Mr. Vipul Sharma, learned counsel for the appellant further submitted that the statement of P.W.2 Rajkumari recorded by the trial court cannot be said to be true on account of her statement as the interpreter was her own husband who was not an independent person. However, on going through the statement of the witnesses recorded by the trial court, this Court finds that while recording the statement of the victim as interpreted by her husband there is specific mention of what kind of gestures and signs made by the victim which clearly indicates that interpretation recorded by the trial court is trustworthy. However, on going through the statement of the witnesses recorded by the trial court, this Court finds that while recording the statement of the victim as interpreted by her husband there is specific mention of what kind of gestures and signs made by the victim which clearly indicates that interpretation recorded by the trial court is trustworthy. Non examination of neighbours in facts and circumstances of the case is fatal to the prosecution case. 11. For the reasons as discussed above, this Court finds no illegality in the impugned judgment and order passed by the trial court holding the accused guilty of charge of offences punishable under sections 452 and 376 IPC. The punishment awarded by the trial court also appears to be reasonable and just, as such requires ? no interference. 12. Accordingly, the appeal is dismissed. The impugned judgment and order dated 21.01.2013 passed by learned Additional Sessions Judge/ II Fast Track Court, in Sessions Trial No. 237 of 1999, is hereby affirmed. Accused/appellant Suresh (S/o Ram Gulam Balmiki) is on bail. His bail is cancelled. He shall surrender before the court concerned to serve out the sentence awarded by the trial court. Lower court record be sent back. Appeal dismissed.