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2013 DIGILAW 173 (UTT)

SATBIR @ PIL v. STATE OF UTTARAKHAND

2013-04-04

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J (Oral). 1. Present appeal is preferred by the appellant challenging the judgment and order dated 08.05.2012 passed by Additional Sessions Judge / 1st FTC, Roorkee, District Haridwar in Sessions Trial No. 392 of 2009 whereby appellant was found guilty for the offence punishable under Section 363, 366, 376 IPC and sentenced to undergo 5 years rigorous imprisonment and to pay fine of Rs. 1000/- and in default of payment of fine, to undergo one month’s additional imprisonment under Section 363 IPC; to undergo 5 years rigorous imprisonment and to pay fine of Rs. 2000/- and in default of payment of fine, to undergo two months additional imprisonment under Section 366 IPC and; to undergo 7 years rigorous imprisonment and to pay fine of Rs. 3000/- and in default of payment of fine, to undergo three months additional imprisonment with the stipulation that all the sentences shall run concurrently. 2. Brief facts of the present case, inter alia, are that PW2 lodged an FIR on 20.10.2008 with police station Mangalore, District Haridwar to the effect that he had gone to take out sand on 15.10.2008 leaving her daughter alone in the house, meanwhile, appellant and his brother Lakhan came to his house and by inducing her, they had taken her on their motorcycle somewhere; when he came to his house, then only he came to know that appellant and his brother had taken his daughter on motorcycle somewhere; he believed that parents of appellant were also involved in the incident. 3. Having registered the FIR, police commenced the investigation. PW1 Prosecutrix was recovered on 22.10.2008 and thereafter, her statement under Section 161 Cr.P.C were recorded and she was medically examined by PW4 Dr. Nisha Gupta. Having investigated the matter, police submitted a charge-sheet against the appellant for the offences punishable under Section 363, 366, 376 IPC. After committal of the case to the Court of Session, charges were framed against the appellant for the offences punishable under Section 363, 366, 376 IPC. Appellant did not admit the charges and claimed trial. 4. From the side of prosecution, PW1 Prosecutrix, her father PW2 Beerbal, PW3 Sompal, PW4 Dr. Nisha Gupta, PW 5 Sub Inspector Prem Prakash, PW6 Constable Badshah Gupta and PW7 Sanjay Ram were examined and from the side of defence, Ashok Kumar was examined as DW1. Appellant did not admit the charges and claimed trial. 4. From the side of prosecution, PW1 Prosecutrix, her father PW2 Beerbal, PW3 Sompal, PW4 Dr. Nisha Gupta, PW 5 Sub Inspector Prem Prakash, PW6 Constable Badshah Gupta and PW7 Sanjay Ram were examined and from the side of defence, Ashok Kumar was examined as DW1. Statements of accused appellant were recorded under Section 313 Cr.P.C. 5. The trial court, having perused the material available before it, passed the impugned judgment and order. 6. I have heard Mr. Manish Arora, learned counsel for the appellant and Mr. Vipual Painuly, AGA for the State and have carefully perused the record. 7. Incident is said to be of 15.10.2008 while prosecutrix was examined in the court on 12.08.2010 where she stated that her age is 18 years. She was medically examined by PW4 Dr. Nisha Gupta and as per the statement of PW4, prosecutrix was more than 18 years of age on 22.10.2008 and during medical examination, she did not find any internal or external injury on the person of prosecutrix and she could not give any definite opinion about rape. 8. PW1 prosecutrix in her examination-in-chief stated that on 15.10.2008 when her father was away from the house, appellant along with his brother Lakhan came to her house and told her that her father had sustained injuries, therefore, her father called her. Believing them, she had left the house along with appellant and his brother; on the way parents of appellant were also met, they suggested her to go with appellant; appellant had taken her to Punjab in a Taxi; and after reaching to Punjab, they stayed in a hotel Room wherein appellant had made forceful sexual intercourse with her without her consent and will, thereafter, both of them came to Roorkee from Punjab by train and when police caught her, they were going on foot but she cannot say where they were going. In the cross examination, she has stated that she went to Punjab in a train that too in a general bogey wherein there were so many passengers. They reached Punjab next day at about 10.00 a.m. therefrom, they went to a Hotel and stayed there. In her statement recorded under Section 161 Cr.P.C., she did not state that she was ever raped. 9. They reached Punjab next day at about 10.00 a.m. therefrom, they went to a Hotel and stayed there. In her statement recorded under Section 161 Cr.P.C., she did not state that she was ever raped. 9. If prosecutrix was taken on motorcycle on the pretext that her father had called her and she was not taken to her father and instead was taken to Roorkee Railway Station, prosecutrix had sufficient time either to raise alarm or to report the matter to police personnel on the Railway Station. Number of police personnel do patrolling on the Railway Station. Not only this, when PW1 reached Punjab, she could report the matter there at Railway Station. PW1 has stated that during daytime appellant, after leaving her alone, in the room used to go outside the Hotel, therefore, she had sufficient opportunity to report the matter either to Hotel staff or to the police in absence of appellant. 10. Statement of PW1 does not inspire any confidence, because initially, she tried to implicate the parents as well as brother of the appellant but police did not find her statement trustworthy, therefore, had not filed any charge-sheet against the parents and brother of appellant. At one place, she states that she went to Punjab in taxi yet during cross-examination, she states that she went to Punjab by train; it seems that intentionally, PW1 prosecutrix is not telling the name of city where she had stayed with appellant in a Hotel; it is unbelievable that prosecutrix would not remember the name of city where she was taken and stayed in a hotel; in her statement under Section 161 Cr.P.C. she does not state that she was ever raped. 11. In view of the above, prosecution has failed to prove the prosecution story. Accordingly, appeal is allowed. Judgment and order under appeal is set aside. Appellant stands acquitted from the charges levelled against him. Appellant is on bail. He need not surrender before the court below, unless required in any other case. His personal and sureties are discharged. 12. Let a copy of this judgment be sent to the court below for compliance along with lower court record.