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2013 DIGILAW 160 (UTT)

Sher Singh v. State of Uttaranchal

2013-03-20

SUDHANSHU DHULIA

body2013
Judgment Sudhanshu Dhulia, J. 1. This Criminal Appeal arises out of a judgment and order of the trial court dated 18.10.2005 passed by the learned First Additional Sessions Judge, Udham Singh Nagar in Sessions Trial No. 324 of 2003 convicting the present appellant under Sections 376 and 506 IPC and thereby sentencing him for 7 years of rigorous imprisonment under Section 376 IPC and a fine of Rs. 25,000/-, and in default in payment of fine further simple imprisonment for 1 year. The appellant was also directed to undergo 2 years of rigorous imprisonment under Section 506 IPC and a fine of Rs. 1,000/-, and in default in payment of fine further simple imprisonment for five months. 2. As in this case the appellant was not being represented by any counsel at the time of final hearing, the Court appointed Mr. Rajesh Kumar Sharma, a practising lawyer of this Court as Amicus Curiae in the matter, to present the case of the appellant before this Court. He was given the paper book of the case, free of cost and time to prepare the matter. It is listed today for final hearing. 3. The State is being represented by Mr. Sohail Siddiqui Additional Government Advocate. 4. Matter heard at length. 5. The brief facts of the case, as per the story of the prosecution, are that a First Information Report (from hereinafter referred to as FIR) was lodged on 19.10.2002 by the father of the prosecutrix Prem Singh on 19.10.2002 at Police Station Rudrapur, district Udham Singh Nagar stating that the complainant had gone away for some work leaving behind his family in the village and on the fateful night of 14.10.2002, when his wife and other members of family had gone to watch “Ram Leela” in the village, his daughter (i.e. the prosecutrix) was sleeping in a room along with her sister-in-law. At about 11.00 PM in the night, his daughter went to answer the call of nature when the accused Sher Singh, who resides in the same village and is their neighbour, grabbed her by pointing a knife to her. First he raped her on the spot i.e. in the fields itself, and then he took her inside his house and there the accused raped her again, the entire night. First he raped her on the spot i.e. in the fields itself, and then he took her inside his house and there the accused raped her again, the entire night. When his wife and other members of the family did not find the prosecutrix in their house, they went for her search. At that time, Sher Singh i.e. the accused got frightened and pushed out the prosecutrix from his house at about 4.00 AM in the morning. While doing so he threatened her that if she reports about this incident to anyone then he will kill her and her family members. His wife and other family members rescued his daughter from outside the house of accused Sher Singh. At that time, his daughter was completely traumatized and was crying. 6. The fact to be noted here is that FIR is of 19.10.2002 and the incident relates to about five days back, which is alleged to have occurred in the intervening night of 14/15.10.2002. 7. The prosecutrix was medically examined at Community Health Centre, Bazpur, District Udham Singh Nagar on 20.10.2002 by a lady doctor Dr. Indra Rajesh. On external examination no marks of injuries were present on vulva or the body of the prosecutrix. On further examination it was found that both the axillary and pubic hair were present. On internal examination, it was found that vagina admits two fingers easily and no bleeding was found. The vaginal smear was sent for pathological examination where no spermatozoa was found. In the bone ossification test the report says that all the carpal bones are clear and visible. Distal epiphyseal ends of both radius and ulna are not completely fused and fusion line is seen, and the opinion given was that the prosecutrix was about 18 years of age. There is a further supplementary report which says that no definite opinion can be given about rape. At this juncture, it is also necessary to state that after lodging of the FIR and during the investigation conducted by the police, the “Salwar” and “Kurta” wore by the prosecutrix were also taken and a memo was also prepared on 20.10.2002, which shows that the “Salwar” had mud stains at various places and from looking her clothes, particularly the “Salwar”, it appears that the person wearing the said clothes had indulged in sexual intercourse. Further, these clothes were sent for forensic examination at Forensic Science Laboratory, Agra. The lab report further suggests that in the “Salwar” of the prosecutrix both semen and spermatozoa was found. After completing the investigation, the police filed the chargesheet and the matter was committed to the Sessions for trial vide order dated 1.12.2003. The accused person was charged under Sections 376 and 506 IPC. 8. The prosecution in support of its case presented as many as 4 witnesses. PW1 Prem Singh is the father of the prosecutrix, PW2 is prosecutrix herself, PW3 is Dr. Indra Rajesh, who conducted the medical examination on the prosecutrix on 20.10.2002 and PW4 is Sub Inspector Mr. Parvez Alam, who conducted the investigation in the matter. Relevant would be to examine the testimony of PW2, which is the prosecutrix herself. 9. The prosecutrix in her examination-in-chief, which was conducted on 12.1.2005, fully supports the story of prosecution and then further states that while she was in the house of the accused she was raped twice by the accused in the night and later when her family members went in search of her, which was heard by the accused, he pushed her out from his house, threatening her that if she reports about this incident to anyone she would be killed. It was about 4:00 AM in the morning. Subsequently she states in her examination-in-chief that after three days when her father returned, she narrated the entire incident to her father and the clothes which she was wearing at the time of incident was handed over to the police. In her cross-examination, she says that the house of the accused is at about 15 feet or so away from her house. She admits that the accused is a handsome boy and that she is the eldest daughter in her family, which has a small holding and they do manual work in order to survive. In her cross-examination, she further says that the accused was having a knife in one hand and by the same hand he had clubbed her mouth, while committing rape on her. She has not given any plausible or reasonable explanation as to why she did not make any effort to run away from the clutches of the accused while they were in the fields. She has not given any plausible or reasonable explanation as to why she did not make any effort to run away from the clutches of the accused while they were in the fields. Thereafter, there is a feeble explanation that since the accused was having a knife in his hand and she was threatened, she went along with the accused to his house and even in house she made no effort to raise any alarm though it is admitted that apart from the accused there were his father, mother and other members of the family who were sleeping in the house at that time. All she says is that she was frightened since accused was carrying a knife! She further says that at about 4.00 AM she came back to her house. She did not tell about the incident to her sister-in-law but told to her mother and her brother and subsequently her mother and brother had called a “panchayat” and had also gone to Police Chowki, Dineshpur and after 2 to 3 days police had also visited her house. 10. PW3 and PW4, by and large, supported the case of the prosecution. They are the doctor, who conducted medical examination on the prosecutrix and the Investigating Officer, respectively. The important fact in the present case is that there is another exhibit i.e. family register of Prem Singh i.e. father of the prosecutrix. It states the date of birth of the prosecutrix is 3.2.1977. If this is taken to be the correct date of birth of the prosecutrix, then at the time of the incident she was about 25 years of age. However, if we go strictly by the medical evidence, the prosecutrix is about 18 years of age. In any case, there is a clear cut finding that the prosecutrix at the time of alleged incident was above 16 years of age. On this finding we will have to examine the matter and see whether in the alleged act assigned to the accused, there was no consent in fact a resistance from the side of the prosecutrix or even if there was a consent it was obtained by putting her under fear of death or hurt. In other words the first or the second or the third situations mentioned in Section 375 IPC must be present. Section 375 of IPC reads as under:- “375. Rape. In other words the first or the second or the third situations mentioned in Section 375 IPC must be present. Section 375 of IPC reads as under:- “375. Rape. – A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First. – Against her will. Secondly. – Without her consent. Thirdly. – With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. 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. Fifthly. – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. – With or without her consent, when she is under sixteen years of age.” 11. On the strength of the evidence which was there with the prosecution, this Court finds that the prosecution was not able to establish the charges of rape against the accused. The testimony given by the prosecutrix both in her examination in chief as well as in cross examination does not inspire confidence. In case the charge of rape had to be established against the accused the rape had to be against her will and without her consent. Merely because the accused was carrying a knife would not mean under the present circumstances that her consent was obtained by putting her in fear of death or hurt, for reasons that not only the alleged rape was first committed in the fields i.e. outside her house but later she was taken to the house of the accused in the middle of the night and then again twice she was raped by the accused in his house. This is too far fetched a story for the simple reason that on the admitted fact that in the house of the accused, his father, mother and other family members of the accused were also present, and there is absolutely no effort on the part of the prosecutrix to raise an alarm. 12. Since the overwhelming findings point out to a consent of the prosecutrix in the matter and she being over 16 years of age, the very fact that in the forensic report of her clothes spermatozoa was found on the “Salwar” will also be of no help to the prosecution, since it appears to be a case of consensual sexual intercourse, if at all such an incident happened on that fateful night. 13. The delay of more than 4 days is also not reasonably explained. The incident is of the intervening night of 14th – 15th October, 2002. The family knew about this incident in the morning of 15.10.02. At that time, apart from the mother there was an elder brother of the prosecutrix, yet no FIR was lodged. The father admittedly returned on 17.10.2002. Yet the FIR is only lodged on 19.10.2002 at 11.20 PM. 14. Hence, the appeal is allowed and the conviction and sentence against the appellant awarded by the trial court in its order dated 18.10.2005 under Section 376 and 506 IPC is set aside. The appellant is acquitted from the charges levelled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 15. Let the trial court record be sent back to the court concerned.