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2013 DIGILAW 120 (UTT)

Mahesh Lal v. State of Uttaranchal

2013-03-08

PRAFULLA C.PANT

body2013
Judgment Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure 1973 (for short Cr.P.C.), is directed against judgment and order dated 12.12.2003, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 24 of 2002, whereby said court has convicted the accused/appellant Mahesh Lal, under Section 376 of I.P.C., and sentenced him to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 3,000/-, in default of payment of fine he shall further undergo imprisonment for a period of one year. The accused/appellant has been further convicted under Section 506(2) of I.P.C., and sentenced to rigorous imprisonment for a period of two years. 2) Heard learned counsel for the parties, and perused the lower court record. 3) Prosecution story, in brief, is that PW2 Vimla Devi aged 17 years, who used to live with her elder sister and brother in law in Pithoragarh, fell in love with accused/appellant Mahesh Lal, who used to come in the house of her brother in law. Both of them had a love affair and on 04.12.1999, accused/appellant Mahesh Lal took PW-2 Vimla Devi to the Shiv Temple of Hudaiti, and filled vermilion on her parting line of hairs on the head and accepted her as his wife. Thereafter, the accused Mahesh Lal established physical relations with her. The girl (PW2 Vimla Devi) got conceived a child. It is alleged that initially, accused Mahesh Lal wanted that the pregnancy be aborted but failed. He took her to Gaziabad on 05.10.2000. The two lived together in the house of one Ram Prasad till 07.01.2001. Meanwhile, on 22.11.2000, a son was born out of the wedlock. However, on 07.01.2001, the accused told the PW2 Vimla Devi that he was going to Pithoragarh to arrange expenses, but did not return back. PW2 Vimla Devi remained with her son at Ghaziabad waiting for the accused, who told her on phone from Pithoragarh that he had met with an accident and he would be coming after getting well. When the accused did not return, PW2 Vimla Devi went back to Pithoragarh to her elder sister’s place. Accused Mahesh Lal came there and quarreled with her and started threatening her of dire consequences. When the accused did not return, PW2 Vimla Devi went back to Pithoragarh to her elder sister’s place. Accused Mahesh Lal came there and quarreled with her and started threatening her of dire consequences. On inquiry, PW2 Vimla Devi after coming back to Pithoragarh, came to know that accused Mahesh Lal got married on 26.01.2001, to a girl of Village Manmanley and later he had a child from the said woman. Still the victim restrained herself but when he neglected to maintain her and the son, she gave a written complaint dated 25.02.2002 (Ex. A4) to the Superintendent of Police, Pithoragarh. On the basis of which Crime No.128 of 2002, was registered at Police Station Kotwali Pithoragarh, against the accused/appellant Mahesh Lal, in respect of offences punishable under Section 363, 366, 376, 504, 506 and 323 of I.P.C. The Crime was investigated by Station Officer, Kunwar Singh Rawat (PW4). The informant Vimla Devi (PW2) was medically examined by PW1 Dr. Bharti Rana of Female Hospital, Pithoragarh on 01.03.2002, and report (Ex. A1) was prepared by her. After interrogating the witnesses and on completion of investigation, the Investigating Officer submitted charge sheet (Ex. A11) against the accused Mahesh Lal for his trial in respect of offences punishable under Section 363, 366, 376, 323, 504 and 506 of I.P.C. 4) The Chief Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. On 07.10.2002, after hearing the parties, learned Sessions Judge, Pithoragarh, framed charge of offences punishable under Section 363, 366, 376 and 506(2) of I.P.C., against the accused Mahesh Lal, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Dr. Bharti Rana (who medically examined the victim), PW2 Vimla Devi (victim), PW3 Pushpa Devi (elder sister of the victim) and PW4 Station Officer, Kunwar Singh Rawat (Investigating Officer). Oral and documentary evidence (including the diary of the accused) were put to the accused, in reply to which, he denied the evidence as false. No evidence in defence was adduced. Bharti Rana (who medically examined the victim), PW2 Vimla Devi (victim), PW3 Pushpa Devi (elder sister of the victim) and PW4 Station Officer, Kunwar Singh Rawat (Investigating Officer). Oral and documentary evidence (including the diary of the accused) were put to the accused, in reply to which, he denied the evidence as false. No evidence in defence was adduced. After hearing the parties, the trial court taking the shelter of fourth Clause of Section 375 of I.P.C., and after appreciating the evidence, found that charge of offences punishable under Section 376 and 506(2) of I.P.C., are proved on record, and accused Mahesh Lal was convicted accordingly. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 3000/- under Section 376 of I.P.C. and rigorous imprisonment for a period of two years under Section 506(2) of I.P.C. Aggrieved by said judgment and order dated 12.12.2003, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 24 of 2002, this appeal was preferred by the convict. 5) Before further discussion, this Court thinks it just and proper to mention the relevant provision of law applicable to the case. Word offence of ‘rape’ has been defined in Section 375 of I.P.C. The relevant portion of the Section for the purposes of this case is being reproduced below: 375. Rape:- A man is said to commit “rape” who, except in the case hereinafter expected, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- …………………………………………………………………… Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. ……………………………………………………………… Exception-… Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. 6) PW6 Vimla Devi in her statement before the trial court, on oath stated that accused Mahesh Lal was friend of her brother in law (JIJA). It is further stated by her that she used to live in Takana (Pithoragarh) with her elder sister and brother in law. She further told that after acquaintance with the accused, he took advantage and started loving her. She admitted that she too started loving him. It is further stated by her that she used to live in Takana (Pithoragarh) with her elder sister and brother in law. She further told that after acquaintance with the accused, he took advantage and started loving her. She admitted that she too started loving him. PW2 Vimla Devi further stated that on 04.12.1999, accused Mahesh Lal took her to the Shiv Temple of Hudaiti and filled her parting line of hairs with vermilion and accepted her as his wife. The girl has stated her age at the time of recording of her statement as 21 years, which means in the year 1991, she was aged 17 years. According to the witness (PW2) after the marriage, the accused established physical relations and had sexual intercourse with her. She further told that she conceived a child and disclosed the fact to the accused Mahesh Lal. Accused Mahesh Lal wanted to get the foetus aborted but failed and took her to Ghaziabad on 05.08.2000, where they stayed with one Ram Prasad who was known to them. According to PW2 Vimla Devi on 22.11.2000, she delivered a male child. She further stated that till 07.01.2001, the accused lived with her and on that day he told her that he is going to Pithoragarh to make arrangements for expenses. PW2 Vimla Devi further told that from Pithoragarh accused Mahesh Lal on a phone told her that he had met with an accident and will come after some time. On hearing this, according to PW2 Vimla Devi she got worried and on 20.01.2001, she came back to Pithoragarh and went to her elder sister’s place. She further told that accused Mahesh Lal came there and started quarrelling with her and threatened her of dire consequences. Meanwhile, after about a week on 26.01.2001, he got married to another woman, who belongs to Village Manmanley. The witness proved the report (Ex. A4) given by her to the Superintendent of Police. She further proved the diary (Ex.A5) of the accused Mahesh Lal which she gave during investigation to the Investigating Officer. She was subjected to lengthy cross-examination but nothing has come out, which creates doubt in her testimony. The witness proved the report (Ex. A4) given by her to the Superintendent of Police. She further proved the diary (Ex.A5) of the accused Mahesh Lal which she gave during investigation to the Investigating Officer. She was subjected to lengthy cross-examination but nothing has come out, which creates doubt in her testimony. 7) On behalf of the appellant it is argued that even if the statement of PW2 Vimla Devi is believed as true account of facts, the sexual intercourse between the accused Mahesh Lal and PW2 Vimla Devi does not constitute a rape, and at best PW2 Vimla Devi could have made complaint relating to offence punishable under Section 494 of I.P.C. 8) On going through the entire evidence on record including oral testimony of PW2 Vimla Devi and that of her sister PW3 Pushpa Devi and the documentary evidence, particularly, the diary (Ex. A5) of the accused proved by PW2 Vimla Devi and PW4 Station Officer, Kunwar Singh Rawat, Investigating Officer, it is clearly established on record that accused Mahesh Lal got married to PW2 Vimla Devi on 04.12.1999, in a Temple and only thereafter, the two established physical relations. From the statement of PW2 Vimla Devi it can be derived that she had given her consent for sexual intercourse to accused Mahesh Lal after a simple ceremony of her marriage in the Temple and that is how she conceived pregnancy and ultimately delivered a male child on 22.11.2000, in the house of Ram Prasad of Ghaziabad, where accused Mahesh Lal had taken her. That being so, it cannot be said that the accused at the time of having sexual intercourse with PW2 Vimla Devi knew that he was not her husband. As such, fourth clause of Section 375 of I.P.C. is of no help in the present case, and it cannot be said that the sexual intercourse between the accused Mahesh Lal and PW2 Vimla Devi constitute commission of rape. In the cross examination PW2 Vimla Devi has stated that she had no complaint against the accused Mahesh Lal till he solemnized second marriage (with another woman). PW3 Pushpa Devi, elder sister of Vimla Devi with whom, she (Vimla Devi) used to live referring to second marriage has stated that the marriage was solemnized with “BAND-BAJA”. 9) Learned counsel for the appellant placed reliance upon the principle laid down by the Apex Court in Uday Vs. PW3 Pushpa Devi, elder sister of Vimla Devi with whom, she (Vimla Devi) used to live referring to second marriage has stated that the marriage was solemnized with “BAND-BAJA”. 9) Learned counsel for the appellant placed reliance upon the principle laid down by the Apex Court in Uday Vs. State of Karnataka 2003 SCC (Cri.) 775 and Vijayan vs. State of Kerala (2009) 3 SCC (Cri.)585 and argued that in the case of pregnancy though consensual sex for longtime, it cannot be said that rape has been committed. 10) For the reasons as discussed above, this court is of the view that though the offence punishable under Section 376 I.P.C., is not proved, but the offences punishable under Section 494 and 506(2) of I.P.C. are fully proved on record. Offence punishable under Section 494 of I.P.C., is a bailable offence, triable by Magistrate and since the allegation made against the accused were known to him, as such, if convicted under said minor offence, it does not prejudice the defence. 11) Accordingly, this appeal is partly allowed. The conviction and sentence recorded by the trial court under Section 376 of I.P.C., is hereby set aside. He is acquitted of said charge but he is convicted under Section 494 of I.P.C., and sentenced to rigorous imprisonment for a period of two years. The conviction and sentence of rigorous imprisonment of two years, recorded by the trial court under Section 506(2) of I.P.C. is affirmed. Both the sentences shall run concurrently. The accused/appellant Mahesh Lal is on bail. His bail is cancelled. He shall surrender before the court concerned. Lower court record be sent back.