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2013 DIGILAW 272 (UTT)

MADHUKANT PATHAK v. STATE OF UTTARAKHAND

2013-05-22

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J (Oral). 1. Present appeal is directed against the judgment and order dated 21.04.2010 passed by Additional Sessions Judge / 4th FTC, Haridwar in Sessions Trial No. 112 of 2009 whereby appellant was held guilty for the offences punishable under Section 354, 366, 367 IPC and sentenced to undergo 2 year rigorous imprisonment and to pay fine of Rs. 1000 and in default of making payment of fine, to undergo two months simple imprisonment under Section 354 IPC; sentenced to undergo 7 year rigorous imprisonment and to pay fine of Rs. 2000 and in default of making payment of fine, to undergo four months simple imprisonment under Section 366 IPC and sentenced to undergo 7 year rigorous imprisonment and to pay fine of Rs. 2000 and in default of making payment of fine, to undergo four months simple imprisonment under Section 367 IPC. 2. Brief facts of the present case, inter alia, are that appellant was a rickshaw puller and he used to carry children from their respective houses to school; victim, a minor girl, also used to go in the pedal rickshaw of appellant to her school; on 02.02.2009 victim could not reach her house till 02.00 p.m. therefore, PW1 Mohan Gupta, father of the victim, went to the school to know the whereabouts of victim; PW1 was told by the school authorities that victim left the school in rickshaw in the company of appellant; PW1 started making search of the victim and when he reached to his house, he found victim in the house; victim was asked as to why she could reach home late; on this victim told to her father that on the way back to home appellant inserted his finger into her private part. 3. On the report filed by PW1 to the above effect check FIR was registered on 03.02.2009 at 01.30 a.m. After investigation, Sub Inspector Ajay Singh PW8 filed a charge-sheet against the appellant for the offence punishable under Section 376/511 IPC. However, learned trial court framed the charges against the appellant for the offence punishable under Section 363, 366A, 377, 367, 376/511, 354 IPC. Appellant denied the charges and claimed trial. 4. To prove the prosecution story, PW1 Mohan Gupta, informant, PW2 Victim, PW3 Seema Gupta, PW4 Dharam Dutt, PW5 Dr. R.K. Pandey, PW6 Dr. However, learned trial court framed the charges against the appellant for the offence punishable under Section 363, 366A, 377, 367, 376/511, 354 IPC. Appellant denied the charges and claimed trial. 4. To prove the prosecution story, PW1 Mohan Gupta, informant, PW2 Victim, PW3 Seema Gupta, PW4 Dharam Dutt, PW5 Dr. R.K. Pandey, PW6 Dr. Poonam, PW7 Roshan Lal Juyal, PW8 SI Ajay Singh, PW9 Birendra Chaddha were examined. Thereafter, statement of appellant was also recorded under Section 313 Cr.P.C. 5. Having perused the entire material available on record, trial court was pleased to convict the appellant and sentenced him, as narrated hereinabove. 6. I have heard Mr. Ajay Singh Bisht, ld. Amicus Curiae for the appellant and Mr. K. S. Rautela, AGA with Mr. P. S. Danu, Brief Holder for the State and have carefully perused the record. 7. PW2 Victim, aged about 6-7 years stated that when she was coming home from the school, appellant took her behind the bushes on the way to her house and inserted his finger into the private part of PW2. She identified the appellant in the courtroom. Learned trial court, having asked different questions opined that victim was able to understand different questions put to her, therefore, she was able to depose before the Court. 8. As far as statements of father and mother of the victim are concerned they only deposed that victim could not reach her house till 02.00 p.m., therefore, search was made for her and when victim came to the house, she, on being asked, narrated the entire incident to them. There is no eyewitness of the incident, however, in my considered view, statement of victim a minor cannot be disbelieved therefore, offence punishable under Section 354 IPC stands proved against the appellant. 9. Undisputedly, victim PW2 used to go to her school in the rickshaw of the appellant, therefore, in my considered opinion at the time of incident, victim was under the lawful custody of the appellant; victim was never kidnapped from the lawful custody of her parents, therefore, offences punishable under Section 366, 367 IPC are not made out against the appellant. Moreover, no charge was framed against the appellant for the offence punishable under Section 366 IPC. 10. Consequently, appeal is allowed in part. Appellant stands acquitted for the offence punishable under Section 366, 367 IPC. Moreover, no charge was framed against the appellant for the offence punishable under Section 366 IPC. 10. Consequently, appeal is allowed in part. Appellant stands acquitted for the offence punishable under Section 366, 367 IPC. However, judgment and order of the trial court convicting and sentencing the appellant under Section 354 IPC is upheld. 11. Mr. Ajay Singh Bisht, submits that since trial Court had convicted the appellant under Section 354 IPC and appellant was sentenced to undergo 2 years rigorous imprisonment vide judgment and order dated 21.04.2010, therefore, he has already served the sentence. Appellant is in jail. Let he be released from jail forthwith, if he has served the sentence for offence under Section 354 IPC and is not wanted in any other case. 12. Let a copy of this judgment be forwarded to the court below for compliance along with lower court record.