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2013 DIGILAW 161 (UTT)

Bittu alias Vikram Singh v. State of Uttarakhand

2013-03-21

PRAFULLA C.PANT

body2013
ORDER This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order 21.02.2008, passed by Additional Sessions Judge/Fast Track Court, Ist, Dehradun, in Sessions Trial No. 34 of 2003, whereby said court has convicted accused Bittu alias Vikram Singh (appellant) under sections 363, 366 and 376, IPC. He has been sentenced to rigorous imprisonment for a period of three years and directed to pay fine of Rs.2,000/- under section 363, IPC, rigorous imprisonment for a period of five years and directed to pay fine of Rs.3,000/- under section 366, IPC, and rigorous imprisonment for a period of seven years and directed to pay fine of Rs.5,000/- under section 376, IPC by the trial court. 2. Heard learned Amicus Curiae for the appellant, and learned counsel for the State and perused the lower court record. 3. Prosecution story in brief is that P.W.2 Pushpa, daughter of P.W.1 Phoolchand, resident of Village Balawala, was aged 16 years. (Her date of birth in school leaving certificate (Ex. A6) is stated to be 8-6-1986). On 8-6-2002 at about 11:00 a.m., accused Bittu alias Vikram Singh (appellant) came to her with him (sic). After two days of the incident on 10-6-2002 P.W.1 Phoolchand (father of the girl) gave first information report (Ex.A1) at Police Station, Raipur that his daughter Pushpa aged 16-17 years was missing. It is further alleged in said report by the father of the girl that accused Bittu son of Budh Singh, resident of Harrawala had kidnapped her. It is also stated in the report (Ex. A1) that the girl has taken Rs.10,000/- and jewelry with her. On the basis of said report crime No. 72 of 2002 was registered in respect of offences punishable under sections 363 and 366, IPC at Police Station, Raipur against accused Bittu alias Vikram Singh. The investigation was conducted by P.W.7 Assistant S.I. Hukum Singh. On the very day (10-6-2002) at 8:00 p.m. the girl was recovered near Shiv Temple. On 12-6-2002, she was taken to female hospital, Dehradun, for her medical examination where she was examined by P.W.4 Dr. Anjali Gosain who prepared medical report (Ex. A3). She (Dr. Anjali Gosain) did not find any internal or external injury on the person of the girl. She observed in her report that no opinion can be given about rape. On 12-6-2002, she was taken to female hospital, Dehradun, for her medical examination where she was examined by P.W.4 Dr. Anjali Gosain who prepared medical report (Ex. A3). She (Dr. Anjali Gosain) did not find any internal or external injury on the person of the girl. She observed in her report that no opinion can be given about rape. The girl was referred to radiologist for determination of her age. After taking x-ray of elbow, knee and ankle joints P.W.8 Dr. P.C. Kapri (Radiologist) opined that the girl was aged between 16-18 years. P.W.2 Pushpa (the girl said to have been kidnapped) was taken to Chief Judicial Magistrate, Dehradun and her statement (Ex. A16) was recorded on 12.06.2002 under section 164, Cr.P.C. In said statement she categorically stated that she was in love with accused Bittu for four years. She further stated that on 08.06.2002 she was going with accused Bittu to get married. She further stated that she and the accused stayed in the house of the relatives of the accused. She further told that they went to employer (D.W.1 Smt. Renu Singh) of the accused and told her about their decision. She further told the Magistrate that she wanted to go with accused Bittu. However, after interrogation of the witnesses the Investigating Officer submitted charge-sheet (Ex. A10) against accused Bittu alias Vikram Singh for his trial in respect of offences punishable under sections 363 and 366, IPC. 4. The special Judicial Magistrate, CBI, Dehradun, on receipt of the charge-sheet, after giving necessary copies to the accused as required under section 207, Cr PC, appears to have committed the case to the court of Sessions for trial. The trial court on 30-6-2003, after hearing the parties framed charge of offences punishable under sections 363 and 366, IPC against accused Bittu alias Vikram Singh who pleaded not guilty and claimed to be tried. An additional charge relating to offence punishable under section 376, IPC was framed by the trial court on 14.09.2004 to which also accused Bittu alias Vikram Singh pleaded not guilty and claimed to be tried. 5. Prosecution got examined P.W.1 Phoolchand (informant and father of the girl), P.W.2 Pushpa (victim), P.W.3 Ranjeet Singh (brother of the girl), P.W.4 Dr. An additional charge relating to offence punishable under section 376, IPC was framed by the trial court on 14.09.2004 to which also accused Bittu alias Vikram Singh pleaded not guilty and claimed to be tried. 5. Prosecution got examined P.W.1 Phoolchand (informant and father of the girl), P.W.2 Pushpa (victim), P.W.3 Ranjeet Singh (brother of the girl), P.W.4 Dr. Anjali Gusain (who medically examined the girl), P.W.5 Bijendra Singh (Head Master of the school where the girl was studying before leaving the school), P.W.6 Mahendra Singh (scribe of the report), P.W.7 Hukum Singh (who investigated the crime) and P.W.8 Dr. P.C. Kapri (Radiologist). Oral and documentary evidence was put to the accused under section 313, Cr. P.C., in reply to which he pleaded that he has been falsely implicated in the case. In defence D.W.1 Smt. Renu Singh was got examined. The trial court after hearing the parties found that charge of offences punishable under sections 363, 366 and 376, IPC are proved against accused Bittu alias Vikram Singh and convicted him accordingly. After hearing on sentence, the trial court sentenced the convict to rigorous imprisonment for a period of three years and directed to pay fine of Rs.2,000/- under section 363 IPC, rigorous imprisonment for a period of five years and directed to pay fine of Rs.3,000/- under section 366, IPC, and rigorous imprisonment for a period of seven years and directed to pay fine of Rs.5,000/- under section 376, IPC. Aggrieved by said judgment and order dated 21.02.2008, passed by learned Additional Sessions Judge/I Fast Track Court, Dehradun, in Sessions Trial No. 34 of 2003, this appeal was preferred by the convict. 6. Before further discussion this Court thinks it just and proper to mention the observations made by P.W.4 Dr. Anjali Gosain who medically examined Pushpa on 12.06.2002. Her observations made in medical report (Ex. A3) are being reproduced below: No marks of external or internal injury seen during clinical examination. Breast, pubic and axillary hair well developed. P/v Vagina admits two fingers easily. Uterus outerverted normal size mobile. No discharge or bleeding present. Adv:-Vaginal smear sent for presence of spermotozoa. x-ray knee, ankle, elbow and wrist joint for age verification. No opinion could be given about rape. The supplementary report (Ex. A4) after pathological test and x-ray is taken, shows that the vaginal smear was negative for spermotozoa. Uterus outerverted normal size mobile. No discharge or bleeding present. Adv:-Vaginal smear sent for presence of spermotozoa. x-ray knee, ankle, elbow and wrist joint for age verification. No opinion could be given about rape. The supplementary report (Ex. A4) after pathological test and x-ray is taken, shows that the vaginal smear was negative for spermotozoa. The radiological report discloses that Pushpa was aged around 16-18 years. As such, the medical evidence on record is not suggestive of commission of rape. In the circumstances, statement of P.W.2 Pushpa is required to be scrutinized. 7. P.W.2 Pushpa corroborating the prosecution case has stated that on the day of incident at about 11:00 a.m., she was in her house when accused dragged her, and took her to Kunwawala. She further told that on the way she met her brother, and there was quarrel between accused Bittu and her brother. She further told that she was recovered from Kunwawala with accused Bittu. She further told that on the day of incident her age was sixteen years. She further stated that she was subjected to rape. 8. However, her above statement relating to factum of rape is totally inconsistent to what she has stated before the Chief Judicial Magistrate, Dehradun under section 164, Cr. P.C. On 12.06.2002 in said statement (Ex. A16) she has categorically stated that she was in love with accused Bittu for about four years, and she went with him to get married as such her testimony before the trial court is shaky and unreliable. There is another document on record which corroborates the fact that the girl had gone on her own volition with the accused. The first information report (Ex. A1) which was given by P.W.1 Phoolchand (father of the girl) at Police Station shows that the girl had taken Rs.10,000/- cash and jewellery with her. 9. In the above circumstances statement of the girl P.W.2 Pushpa read with her statement (Ex. A16) recorded by Chief Judicial Magistrate, Dehradun, under section 164, Cr.P.C., which is proved by the girl herself, further read with the medical evidence on record makes it clear that it is not a case of rape rather a case of consensual sex between accused and the girl. 10. A16) recorded by Chief Judicial Magistrate, Dehradun, under section 164, Cr.P.C., which is proved by the girl herself, further read with the medical evidence on record makes it clear that it is not a case of rape rather a case of consensual sex between accused and the girl. 10. As far as the offences punishable under sections 363 and 366, IPC are concerned, P.W.1 Phoolchand (Father of the girl) who is her guardian has not supported the prosecution story and he has turned hostile. He did not say that accused had taken his daughter from his lawful guardianship. He told that the girl was aged eighteen years. Not only this, P.W.3 Ranjeet Singh (real brother of the victim) has stated in his cross-examination that his age was twenty five years. He had two younger sisters Seema and Pushpa (victim). Seema was three years younger to him and Pushpa was two years younger to Seema. In other words age of the victim (Pushpa) was twenty years in the year 2004 which means on the day of the incident age of the girl was eighteen years. On perusal of cross-examination of P.W.2 Pushpa also it is clear that she has admitted that her elder brother was aged thirty years who was a married man. She further told that they are three siblings. She further stated that her elder sister is three years younger to her elder brother and she (P.W.2) is two years younger to her elder sister as such the statement given by the girl in her cross-examination further corroborates the fact that on the day of the incident she was aged eighteen years. As such, this Court is of the view that the allegation of kidnapping of minor girl made by the prosecution does not stand proved on the record. 11. After re-appreciating the entire evidence on record, for the reasons as discussed above, this Court is of the view that charge of none of offences punishable under sections 363, 366 and 376, IPC is not proved against the accused Bittu alias Vikram Singh. In the opinion of this Court the trial court has erred in law in convicting the accused Bittu alias Vikram Singh under sections 363, 366 and 376, IPC. Therefore, the appeal is allowed. In the opinion of this Court the trial court has erred in law in convicting the accused Bittu alias Vikram Singh under sections 363, 366 and 376, IPC. Therefore, the appeal is allowed. Impugned judgment and order dated 21.02.2008 passed by Additional Sessions Judge/ I Fast Track Court, in Sessions Trial No. 34 of 2003 convicting accused/appellant Bittu alias Vikram Singh under sections 363, 366 and 376, IPC is hereby set aside. The accused/appellant Bittu alias Vikram Singh is acquitted from the charge of offences punishable under sections 363, 366 and 376, IPC. He is on bail. He need not surrender. Lower court record be sent back. Appeal allowed.