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2013 DIGILAW 127 (UTT)

INDRA MANI THAPLIYAL v. STATE OF UTTARAKHAND

2013-03-13

Alok Singh, Barin Ghosh

body2013
JUDGMENT Per: Hon’ble Alok Singh, J. 1. This is a jail appeal preferred by the accused appellant assailing the judgment and order dated 22.01.2008 passed by 2nd Additional Sessions Judge, Dehradun, in Sessions Trial No. 154 of 2006 whereby appellant was convicted for an offence punishable under Section 376 IPC and sentenced to undergo life imprisonment and to pay fine of Rs. 20,000/-, failing which to undergo six months’ additional imprisonment for the offence punishable under Section 376 IPC. 2. Brief facts of the present case, inter alia, are that PW2 Aarti (prosecutrix) is the real daughter of accused appellant. PW2 prosecutrix lodged an FIR against her own father on 06.06.2006 with police station Patel Nagar, Dehradun stating therein that appellant has five children including the prosecutrix; in the month of February, 2005 appellant came in her bed and committed rape upon her; however, she did not disclose same to her mother out of fear and kept on bearing the misdeeds of her father continuously; on 09.05.2006, when her mother went out to purchase milk from market, appellant came and caught her hand; she immediately rushed outside the house and narrated the entire incident to her mother; she had 7 months’ pregnancy in her womb from her father; appellant took her to Doon Hospital on 05.06.2006 for treatment wherefrom she was discharged only today and she has come to lodge this report. Report was countersigned by PW2 as well as by her mother PW1. 3. Having investigated the matter, police filed a charge-sheet against the appellant for an offence punishable under Section 376 IPC. From the side of prosecution, PW1 mother of prosecutrix, PW2 prosecutrix, PW3 Dr. Deepali Foniya, PW4 Dr. Guman Singh, PW5 Constable Devendra Singh, PW6 SI K.S. Garbiyal, PW7 Ganesh Prasad Bauthiyal were examined. Appellant got himself examined as defence witness. 4. Learned trial court, having perused the entire material available on record, was pleased to pass judgment and order, which is under challenged in the instant appeal. Appellant has preferred this appeal from Jail through Jailor, District Jail, Dehradun. 5. We have heard Mr. Dinesh Gahatori, Amicus Curiae for the appellant as well as Mr. H.O. Bhakuni, Brief Holder, for the State and have carefully perused the record. 6. Appellant has preferred this appeal from Jail through Jailor, District Jail, Dehradun. 5. We have heard Mr. Dinesh Gahatori, Amicus Curiae for the appellant as well as Mr. H.O. Bhakuni, Brief Holder, for the State and have carefully perused the record. 6. Prosecutrix, who was less than 18 years of age in the month of February, 2005, has stated, on oath, that on the fateful night, her mother underwent through the operation of vasectomy and appellant came to her bed and committed rape upon her. She has further stated that on several occasions, appellant had committed rape upon her, however, she could not make any complaint to her mother due to fear, as appellant had threatened her, if she would disclose this to anybody, she would be killed. She has further stated that on 09.05.2006, when her mother went to purchase the milk from the market, appellant came and caught her hand with ill intention, however, she managed to escape, thereafter, she narrated the entire incident to her mother. Thereafter, serious altercation took place between her mother and father, on the issue. Appellant took her daughter to Doon Hospital on 05.06.2006 wherein she was remained admitted. Doctors had diagnosed 7 months’ pregnancy and she disclosed to doctors that she had pregnancy from her father i.e. appellant. PW1 mother of prosecutrix, has also supported the prosecution story. 7. Undisputedly, prosecturix had delivered a dead baby in the month of August, 2006. PW3 Dr. Deepali Foniya, who had examined the prosecutrix on 09.06.2006, has stated that she had diagnosed 25 – 26 weeks’ pregnancy. She has further stated DNA test can be conducted on alive or dead infant. PW4 Dr. Guman Singh has stated, on oath, that as per ossification test, prosecutrix was aged about 17 years in the year 2006. 8. Mr. Dinesh Gahatori, Amicus Curiae, has vehemently argued that appellant moved an application before the learned ACJM on 19.07.2006 to the effect that DNA test of the appellant as well as of the infant in the womb be conducted in order to find out the truth. However, instead of passing any appropriate order on the application, so moved, learned Magistrate had forwarded the same to the Investigating Officer for necessary action. He has further argued that Investigating Officer instead of taking appropriate steps for DNA test, as prayed for, slept over the matter. 9. Mr. However, instead of passing any appropriate order on the application, so moved, learned Magistrate had forwarded the same to the Investigating Officer for necessary action. He has further argued that Investigating Officer instead of taking appropriate steps for DNA test, as prayed for, slept over the matter. 9. Mr. Dinesh Gahatori, has argued that had there been any scientific evidence, in order to prove innocence or guilt of the appellant, then it would be easier for the court to separate the wheat from the chaff, therefore, inaction on the part of Magistrate and Investigating Officer has caused prejudice to the appellant. 10. There is specific accusation and direct allegation made by the prosecutrix against her real father. In our firm opinion, in Indian society, a daughter cannot falsely implicate her own natural father, that too for an offence of rape. In our firm opinion, sole statement of prosecutrix, who is a real daughter of the appellant, is sufficient for conviction of the appellant and no other corroboration is required but we cannot lose our sight to the fact that an application was moved by appellant before ACJM asking for DNA test and according to PW3 Dr. Deepali Foniya, the DNA test could have been conducted, even if, infant is dead. Inaction of learned Magistrate as well as Investigating Officer cannot be appreciated. However, simply because learned Magistrate and Investigating Officer have failed to take appropriate steps on the application of appellant, we cannot brush aside the statement of prosecutrix. 11. Learned Amicus Curiae has further submitted that present case is not such a case wherein maximum punishment of life imprisonment can be said to be justified. He submits that in the peculiar facts and circumstances of the case, a lenient view should be taken by this Court. 12. 11. Learned Amicus Curiae has further submitted that present case is not such a case wherein maximum punishment of life imprisonment can be said to be justified. He submits that in the peculiar facts and circumstances of the case, a lenient view should be taken by this Court. 12. Since in the present case, as observed herein above, learned ACJM and Investigating Officer failed to take appropriate action on the application of the appellant and prosecutrix was more than 16 years of age in 2005 and had not reported the matter for long time to her mother, we find, in the peculiar facts and circumstances of case, this case does not fall within sub-section 2 of Section 376 IPC, therefore, sentence of life imprisonment awarded by the court below seems to be totally unjustified, so if case fall outside the purview of Section 376 (2) IPC, then commensurate punishment should be less than 10 years of imprisonment, as held by this Court in the case of Sanjay Singh Vs. State of Uttarakhand in Criminal Appeal No. 209 of 2007 decided on 12.12.2012. Consequently, the appeal is disposed of upholding the order of conviction of appellant, however, as discussed above, life imprisonment awarded to the appellant is converted to rigorous imprisonment of 8 years but rest part of the sentence shall remain intact. 13. Let a copy of this judgment be sent to the court below for compliance along with lower court record.