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2013 DIGILAW 177 (UTT)

Vikram Singh v. State of Uttarakhand

2013-04-04

U.C.DHYANI

body2013
Judgment U.C. Dhyani, J. Taking recourse to Section 156(3) Cr.P.C. the criminal law was set into motion at the instance of the victim Jaimati. An application under Section 156(3) Cr.P.C. was moved on 06.11.2006, which was addressed to Judicial Magistrate, Didihat, Pithoragarh. Victim complained that she belonged to Scheduled Caste community and the accused Vikram Singh was a member of higher caste. Accused Vikram Singh committed rape with her in the year 2005, a trial of which was pending before the court concerned. Accused Vikram Singh was released on bail in the said case. In December 2005, when he was released on bail, accused told the victim that he will marry her. He committed sexual intercourse with her several times, as a consequence of which, she became pregnant. Accused gave her false assurance that he will marry her. On 04.10.206, at 8:00 p.m., accused Vikram Singh entered into the house of the prosecutrix. The accused was accompanied by his father, who was having stick in his hands. Vikram Singh dragged her and put the knife on the neck and slapped her. He used casteist remarks. A complaint was given in PS Thal but no action was taken. Judicial Magistrate, Didihat passed an order on the application of the victim. Consequently, case crime n. 242 of 2006 was lodged in PS Thal, Didihat, Pithoragarh on 07.11.2006, at 1:30 p.m. as regards offences punishable under Sections 323, 504, 506, 452, 376 IPC and Section 3(1)(X) of the Scheduled Casts and Scheducled Tribes (Prevention of Atrocities) Act. 2. After the investigation, a charge sheet (Ext. Ka-7) was submitted regarding the same offences against the accused Vikram Singh in the court of Magistrate having jurisdiction. The case was committed to the Court of Sessions. When the trial began and prosecution opened it’s case, charge for the selfsame offences was framed against the accused, who pleaded not guilty and claimed trial. As many as six witnesses, namely, PW 1 Smt. Jaimati (victim), PW 2 Mohan Ram (father of victim), PW 3 Dr. Bharti Rana, PW 4 Constable Girish Chandra, PW 5 Smt. Madhavi Devi and PW 6 D.S. Negi were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C. In reply to the questions, the accused-appellant admitted that he had sexual intercourse with the victim when he was released on bail. Bharti Rana, PW 4 Constable Girish Chandra, PW 5 Smt. Madhavi Devi and PW 6 D.S. Negi were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C. In reply to the questions, the accused-appellant admitted that he had sexual intercourse with the victim when he was released on bail. He also admitted that yet another case of rape (with the same victim) was pending against him and he was released on bail in that case. He knew that the victim has instituted a case of rape against him. Despite the same, he had sexual intercourse with her. He also admitted that the victim belonged to SC community. She was a co-villager, who resided near to his house. She was an old acquaintance. He admitted that an FIR was lodged by the victim in this regard. He also admitted that the victim conceived after he (accused) had sexual intercourse with her. Accused also admitted that a chik FIR was lodged against him on the basis of directions of Judicial Magistrate, Didihat. Accused also admitted that the victim is maintaining the child, who was borne after his (accused-appellant’s) cohabitation with the victim. Accused conceded that he promised to marry the victim but since he got late, therefore, the first information report was lodged. 3. After hearing both the sides and after considering the evidence on record, the accused Vikram Singh was held guilty of the offences under Sections 376, 323, 504, 506 IPC along with the offences punishable under Section 3(1)(XII) of Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act. He was sentenced appropriately on each count. While convicting the accused for the offence punishable under Section 376 IPC, he was sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of Rs. 25,000/-. Aggrieved against the said conviction and sentence, present criminal appeal was preferred. 4. Learned Amicus Curiae submitted that there is delay in lodging the first information report. The facts in the backdrop of these incidents were peculiar. Accused-appellant committed rape with the victim. Convict-accused was being tried. He was enlarged on bail. He came back to his village and had sexual intercourse with the victim. Accused made false utterances and promised the victim to marry, but did not do so. The facts in the backdrop of these incidents were peculiar. Accused-appellant committed rape with the victim. Convict-accused was being tried. He was enlarged on bail. He came back to his village and had sexual intercourse with the victim. Accused made false utterances and promised the victim to marry, but did not do so. He had sexual intercourse with the victim again, as a consequence of which, the victim got pregnant and gave birth to a child. Accused-appellant has admitted in statement under Section 313 Cr.P.C. that yes, he had sexual intercourse with the victim. He wanted to marry her, but could not because he got late. It is a case of confession and avoidance. The plea taken by the accused-appellant was that it was with the consent of the victim, but admitted that he made promises to victim to marry her. It is clear from the prosecution story as well as the evidence on record that the accused-appellant adopted deceitful means to procure the consent, if any, of the victim. 5. It has been observed by Hon’ble Supreme Court in Harpal Singh and another vs. State of Himachal Pradesh, 1989 (1) SCC 560 that sometimes there is delay in lodging the first information report because honour of the family was involved. On some other occasion, the Hon’ble Supreme Court has observed that the Court of fact has to consider, in the light of the totality of evidence, whether the delay in lodging the first information report adversely affects the case of the prosecution. The same is a matter of appreciation of the evidence. There may be cases where there is direct evidence to explain the delay even in the absence of direct explanation, there may be circumstances appearing on record, which provided a reasonable explanation for the delay. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station. 6. In Ramdas vs. State of Maharashtra, AIR 2007 SC 155, it was observed by the Hon’ble Supreme Court that it is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. Different cases have different facts and it is the totality of evidence and the impact that it had in the mind of Court that is important. No strait jacket formula can be evolved in such matters and each case must rest on it’s own facts. 7. Considering the background of this case, some delay in lodging the first information report did not appear to be fatal to the prosecution. 8. Prosecution led the evidence through PW 1 (victim), who supported the prosecution story and proved the contents of her report. It will be mere repetition of facts if the contents of her examination-in-chief are reproduced here. The same are being avoided for the sake of brevity, for she told in her examination-in-chief what was written by her in her complaint. In her cross-examination, she said that when the accused said that he will marry her only then she consented to have sex with her (false assurance, by deceit). She said that she was 19 years of age when she deposed before the trial court on 20.04.2007. 9. PW 2 Mohan Ram was the father of victim, and PW 5 Madahvi Devi was the mother of the prosecutrix. PW 2 said, among other things, that when accused committed rape with his daughter, he was not present. When he reached his home, his daughter and his wife narrated the story to him. He moved a complaint to the police station concerned as well as to the District Magistrate, but to no avail. Jaimati (victim) conceived the child of accused-appellant. She was taken to the hospital, whereupon it was found that she has conceived a child. She has begotten a child, who was being maintained by his daughter. 10. PW 5 also said that the accused committed rape with the victim, firstly in the year 2005, and subsequently in the year 2006. The second occurrence took place when the victim had gone to relieve herself in a field. When the victim raised hue and cry, PW 5’s daughter went to the field. PW 5’s daughter told PW 5 that Vikram Singh committed rape with her. After 15-16 days of the occurrence, the accused again came to their house, caught hold of victim and slapped her using casteist remarks. When the victim was taken to hospital, the Doctor told that she had conceived. PW 5’s daughter told PW 5 that Vikram Singh committed rape with her. After 15-16 days of the occurrence, the accused again came to their house, caught hold of victim and slapped her using casteist remarks. When the victim was taken to hospital, the Doctor told that she had conceived. Later on, a male child was begotten by her, which child was being maintained by the victim. 11. The witnesses of fact were supported by the medical evidence. PW 3 Dr. Bharti Rana while proving the medical report (Ext. Ka-2), said that there was no injury marks on her (victim’s) body. On extraction of breasts, milky discharge was coming from (nipples of) the victim. The girl was pregnant. No evidence of rape was present. The girl was pregnant by 26-28 weeks. The irony was that the accused committed rape with the victim for the second time. He was undergoing trial. His case of first rape was pending. He was enlarged on bail. Thereafter, he kept deceiving victim saying that he will marry her and committed rape again, as a consequence of which, the victim became pregnant and later on delivered a male child. The accused, in his statement under Section 313 Cr.P.C., has admitted sexual intercourse with her. 12. If the victim lost her virginity earlier, the same did not give, in law, a license to any person to commit rape with her or have sexual intercourse with her. The Hon’ble Supreme Court has held in some cases that even if the prosecutrix was not having a good character and she was a girl of easy virtues, that does not itself dilute the offence. The fact that the victim was previously accustomed to sexual intercourse, the same is not a determining factor. In the instant case, not only offence of rape has been established as against the accused-appellant, but also other offences relating to assault, using abusing language, threatening the victim with dire consequences and also using casteist remarks. 13. The court below has marshaled the facts and has come to a conclusion that the offences as alleged, were proved beyond reasonable doubt against the accused-appellant. The finding of the learned trial court is based on proper appreciation of facts and sound principles of law. No interference is called for in the Judgment and Order passed by the court below. 14. The criminal appeal fails and is accordingly dismissed. The finding of the learned trial court is based on proper appreciation of facts and sound principles of law. No interference is called for in the Judgment and Order passed by the court below. 14. The criminal appeal fails and is accordingly dismissed. The judgment and order dated 07.08.2007 passed by the learned court below, upholding conviction of the appellant, is hereby affirmed. The conviction and sentence recorded against the appellant by the court below is upheld. Accused/appellant Vikram Singh is in jail. Let a copy of this Judgment along with the lower court record be sent back to the trial court to make the convict/appellant serve out the remaining part of the sentence awarded by learned trial court and thus affirmed by this court. A copy of this judgment be also sent to the Superintendent of Jail concerned for compliance.