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2013 DIGILAW 207 (UTT)

Jeewan Singh Chilwal v. State of Uttarakhand

2013-04-17

BARIN GHOSH, SERVESH KUMAR GUPTA

body2013
Judgment Servesh Kumar Gupta, J. Both the above titled cross-appeals arise from the same judgment and order, so are being adjudicated by this single judgment. 2. Accused convict Jeewan Singh Chilwal was found guilty by learned Additional Sessions Judge/Ist FTC, Nainital vide his judgment and order dated 17/21.12.2011 passed in Sessions Trial No. 41/2010, State v. Jeewan Singh Chilwal. He was tried for the offence of Section 376(2)(d) IPC. However, he was found guilty of offence under Section 376D IPC. Learned Trial Judge has awarded the maximum sentence as envisaged under the Penal Code for the offence of Section 376D IPC and sentenced him to five years’ rigorous imprisonment nay a fine of Rs. 5,000/-. In default of payment of fine, convict has been directed to undergo six months’ simple imprisonment. 3. The prosecution story in brief is that Ganga Prasad Sati (informant) admitted his wife Smt. Pushpa Sati in Ganesh Bone Hospital, Haldwani on 3.1.2010 for her medical treatment because she was ailing in her spine. In the intervening night of 3/4.1.2010 at about 11 PM, he called the night duty attendant in the hospital for giving medicine to his ailing wife. The attendant Jeewan Singh Chilwal came and, on the pretext of need of new medicine to be fetched from the market, he sent Ganga Prasad Sati out of the hospital. Mr. Sati went to the market to purchase the medicine prescribed by the night duty attendant Jeewan Singh Chilwal. Finding Smt. Pushpa Sati alone lying on the bed, Jeewan Singh Chilwal bolted the door from inside and committed rape upon her. When Ganga Prasad Sati returned to the room of his wife, Jeewan Singh Chilwal was coming out of the room and he found his wife weeping. On being asked his wife explained everything that she was raped by Jeewan Singh Chilwal, who was leaving the room just then. Ganga Prasad Sati lodged the FIR on 4.1.2010 at 10.30 AM. The chick report whereof is Ex. Ka-1. The police came and recovered the bed sheet and petticoat of Smt. Pushpa Sati, which were found seamen-stained. Lateron on 4.1.2010 itself the accused was also arrested and his underwear was also taken into custody. All the three articles were sent to forensic science laboratory, the report whereof is Ex. Ka-11. All the three items were found seamen-stained by the scientist. Lateron on 4.1.2010 itself the accused was also arrested and his underwear was also taken into custody. All the three articles were sent to forensic science laboratory, the report whereof is Ex. Ka-11. All the three items were found seamen-stained by the scientist. The lady was also medically examined on 4.1.2010 at about 2.10 PM. Since she was the mother of two children, and could not resist physically with force to the culprit because of her spine injury, so sign of resistance was not found on her body, but her vaginal smear when examined by the pathologist in the laboratory, then spermatozoa were found present in the same. Investigation culminated into submission of the chargesheet against the accused for the offence of Section 376(2)(d) IPC, which is Ex. Ka-10 and the charge was accordingly levelled against the accused and he was put to trial. 4. PW1 Constable Anand Kumar is the formal witness. He was posted in the Police Station Haldwani on 4.1.2010. He has written the FIR in the General Diary of the Police Station and has proved the same. 5. PW2 is the victim Smt. Pushpa Sati. She has proved the incident with all the minute details and sequence as the rape was committed upon her body, she could not physically resist the accused due to her spine injury because she was even unable to sit while lying on her bed. She has also proved that the accused, in order to rape her, put a cloth in her mouth, so she also could not make any scream at the relevant time. She was so hapless as could do nothing against the accused, and when her husband returned, she could only weep. 6. PW3 is the Ganga Prasad Sati, husband of the victim, who has proved that the accused sent him outside the hospital to the market on the pretext of need of a new medicine. The name of the new medicine, in the handwriting of the accused as was given to Ganga Prasad Sati, is Ex. 1. It has also been proved that after half an hour, he returned to the hospital and he found Jeewan Singh Chilwal was going out from the room of his wife. His wife was weeping inside. On being asked she explained everything regarding the incident and disclosed that the accused committed rape upon her. 7. 1. It has also been proved that after half an hour, he returned to the hospital and he found Jeewan Singh Chilwal was going out from the room of his wife. His wife was weeping inside. On being asked she explained everything regarding the incident and disclosed that the accused committed rape upon her. 7. PW4 is Constable Sayeed Ahmad, who has proved that two bundles containing the petticoat, bed sheet and underwear of the accused were taken by him to the forensic science laboratory at Dehradun. He submitted these bundles in the laboratory for examination. 8. PW5 Dr. GK Joshi is the owner of that private hospital, where the victim was admitted for treatment. He has deposed that in the intervening night of 3/4.1.2010 at about 10 PM, he went to the first floor of the building to retire, but when came back in the morning at about 8 AM, Ganga Prasad Sati told him that his wife Smt. Pushpa was suffering from stomachache. It was also disclosed there that ward boy Jeewan Singh Chilwal has committed rape upon her body. Then this doctor informed the police and criminal law was set into motion. 9. PW6 is SI Sanjay Kuar Pandey, who has investigated the matter and submitted the chargesheet. He has proved the same, which is Ex. Ka-10. 10. PW7 is Dr. Anupama Hayanki, who was posted at the relevant time at Government Female Hospital, Haldwani. She has stated that no clear opinion could have been given about the rape because the victim being a married lady was habitual to sexual intercourse and two fingers could easily be admitted in her vagina. She has also stated that in such a state of affairs, spermatozoa could also be noticed if the lady is subjected to sexual intercourse within a week. 11. Learned Counsel for the appellant convict argued that presence of spermatozoa in the vaginal smear could have been on account of sexual intercourse by the husband with his wife (victim). This contention would have been of some worth if the seamen could not have been found on the bed sheet of the hospital and petticoat of the lady in addition to the underwear of the accused. It is acceptable that the lady was not in a position to offer tough resistance against the accused on account of spinal injury at the relevant time. It is acceptable that the lady was not in a position to offer tough resistance against the accused on account of spinal injury at the relevant time. She was quite helpless and had no option but to remain lying silent on the bed. Her mouth was even closed by inserting cloth in it and her mouth was also covered by the accused. So in these circumstances, she could not save herself from the cruel act of the accused. We do not find any force in the appeal preferred by the convict Jeewan Singh Chilwal and dismiss the same. 12. In the facts and circumstances of the case, we are of the considered view that the offence committed by the accused is not punishable simplicitor for the offence of Section 376D IPC, but it is punishable for the offence of Section 376(2)(d) IPC, wherefor the chargesheet was submitted and charge was levelled by the learned Sessions Judge. It appears that learned trial court has failed to appreciate the difference between these two sections. On meticulous reading of the language of Section 376(2)(d) IPC and that of Section 376D IPC, the difference is clearly visible. The former envisages the rape “on” a woman by a man taking advantage of his official position on the staff of the hospital, while the latter adumbrates the sexual intercourse by a man, taking advantage of his position, “with” any woman in that hospital. In the instant case, the culprit’s position in the hospital, albeit a private one, was in such a state as to officially authorize him to attend the women patient under treatment within the hospital. He was a Ward Boy assigned the duty to attend the victim in that night as and when he is called to render his services to the patient. He was not occupying a simple position to be present in the hospital, but it was his official position to attend the patients for giving them medicines and other affiliated works. He abused his official position, committed rape on the victim without her consent and against her will. 13. While making the provision of the lesser punishment under Section 376D IPC, the Legislature has used the phrase “has sexual intercourse with any woman”, whereas in Section 376(2(d), the phrase used is “commits rape on a woman”. He abused his official position, committed rape on the victim without her consent and against her will. 13. While making the provision of the lesser punishment under Section 376D IPC, the Legislature has used the phrase “has sexual intercourse with any woman”, whereas in Section 376(2(d), the phrase used is “commits rape on a woman”. So, the clear-cut difference between these phrases can be visualized because rape is always against the will and consent of the victim, while sexual intercourse with any woman may not always be against her will and without her consent. That is why if the sexual intercourse is done with any woman in the hospital by a person taking advantage of his position, then it has been enunciated as “not amounting to offence of rape”. This is the reason wherefore the lesser punishment has been prescribed for the offence under Section 376D IPC. 14. In the instant case, it was the rape committed on Smt. Pushpa Sati by the accused Jeewan Singh Chilwal in that fateful night taking advantage of his official position as a Ward Boy. So, it was a clear-cut offence of Section 376(2)(d) IPC, and not of Section 376D IPC. 15. This way the appeal preferred by Smt. Pushpa is hereby allowed and the quantum of sentence as awarded by the learned trial court is enhanced to that of ten years’ rigorous imprisonment along with fine of Rs. 10,000/-. In default of payment of fine, accused convict Jeewan Singh Chilwal will further undergo one year’s simple imprisonment. 16. Copy of this judgment along with lower court record be sent to the trial court for compliance.