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2013 DIGILAW 408 (UTT)

Moru Mandal v. State of Uttarakhand

2013-06-28

PRAFULLA C.PANT

body2013
Judgment Prafulla C. Pant, J. This appeal, directed against the judgment and order dated 30.03.2011, passed by Additional District Judge/ I Fast Track Court, Rudrapur, District Udham Singh Nagar, is received through Superintendent Sub-jail, Haldwani. The accused/appellant Moru Mandal has been convicted under section 376 and 506 IPC by the trial court, and he has been sentenced to rigorous imprisonment for a period of seven years, and directed to pay fine of Rs. 22,000/- under section 376 IPC, and simple imprisonment for a period of six months and directed to pay fine of Rs. 2,000/- under section 506 IPC. 2. Heard learned Amicus Curiae for the appellant, and learned counsel for the State. 3. Prosecution story, in brief, is that on 08.03.2009, at about 5:00 p.m., P.W.1 Sumati Gaeen (victim) aged eleven years was all alone in her house in Viveknagar, Transit Camp, Ward No. 2, Rudrapur. Her mother Laxmi Gaeen (P.W.2) had gone out to her mother’s place. Accused Moru Mandal who happens to be uncle of mother of the victim came in the house, and caught hold of the victim, and he committed rape on her, and threatened her of dire consequences if she dare to disclose about the incident. After the little girl was subject to rape, she started bleeding from her private parts. When her mother came back in her house at about 9:00 p.m., the girl disclosed horrifying incident to her. P.W.2 Laxmi Gaeen gave first information report (Ex. A2) at Police Station Rudrapur (District Udham Singh Nagar) on the very day (08.03.2009) at about 11:00 p.m. On the basis of said report, Crime No. 105 of 2009, was registered against accused Moru Mandal relating to offence punishable under section 376 IPC. The investigation was taken up by P.W.6 S.I. Lalit Mohan Joshi. The girl was taken for medical examination to Government Female Hospital, Rudrapur. P.W.3 Dr. Tanuja Sinha, medically examined the girl, and prepared her report (Ex. A4). She referred the victim for radiological examination on which P.W.4 Lalit Singh Toliya, Radiologist, on 09.03.2009, conducted radiological examination, and opined that victim was aged between 12-14 years. During investigation, the victim (Sumati Gaeen) was taken before the Judicial Magistrate, Rudrapur, Udham Singh Nagar, who recorded her statement under section 164 Cr.P.C. The girl narrated prosecution case before the Magistrate also, and told that her skirt and undergarment got soaked with blood. During investigation, the victim (Sumati Gaeen) was taken before the Judicial Magistrate, Rudrapur, Udham Singh Nagar, who recorded her statement under section 164 Cr.P.C. The girl narrated prosecution case before the Magistrate also, and told that her skirt and undergarment got soaked with blood. After completion of investigation, the Investigating Officer submitted charge sheet (Ex. A13) against accused Moru Mandal for his trial in respect of offences punishable under section 376 and 506 IPC. 4. The Chief Judicial Magistrate, Udham Singh Nagar, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C. committed the case to the court of sessions for trial. The trial court on 22.05.2009 after hearing the parties framed charge of offences punishable under section 376 and 506 IPC to which accused Moru Mandal pleaded not guilty and claimed to be tried. 5. Prosecution got examined P.W.1 Sumati Gaeen (victim), P.W.2 Laxmi Gaeen (informant/mother of the victim), P.W.3 Dr. Tanuja Sinha (who medically examined the girl), P.W.4 Dr. Lalit Singh Toliya (Radiologist), P.W.5 Head Constable Pradeep Joshi (who registered the FIR and made entry in the General Diary) and P.W.6 S.I. Lalit Mohan Joshi (who investigated the crime). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he pleaded that the evidence adduced against him was false. However, no evidence in defence was adduced. 6. After hearing on sentence, the trial court found accused Moru Mandal guilty of charge of offences punishable under section 376 and 506 IPC. After hearing on sentence, he was sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 22,000/- under section 376 IPC. Accused Moru Mandal was further convicted under section 506 IPC, and sentenced to simple imprisonment for a period of six months, and directed to pay fine of Rs. 2,000/-. Hence this appeal got sent by him through Superintended Sub-jail, Haldwani. 7. Before further discussion this Court thinks it just and proper to mention the observation made by P.W.3 Dr. Tanuja Sinha, who medically examined the girl soon after the incident. Though, P.W.3 has mentioned that she did not find any external and internal injury but it is observed by her that the hymen was not intact and the vagina is admitting only one finger. Tanuja Sinha, who medically examined the girl soon after the incident. Though, P.W.3 has mentioned that she did not find any external and internal injury but it is observed by her that the hymen was not intact and the vagina is admitting only one finger. This Court is also gone through the statement of P.W.4 Dr. Lalit Singh Toliya, the Radiologist who has stated that after radiological examination, age of the girl was between 12-14 years. On scrutinizing the medical reports (Ex. A4 and Ex. A5) prepared by Dr. Tanuja Sinha (P.W.3), this Court is of the view that the medical officer (P.W.3) has given the report that no definite opinion of rape can be given only to avoid uncomfortable cross-examination from the side of the defence. Why this Court is observing as above, is that the Forensic Laboratory Report (Ex. A12) shows that the garments of the victim sent for analysis found that it contained stains of human blood. 8. P.W.1 Sumati Gaeen , the little girl, who is victim of the incident has stated in her examination-in-chief that on 08.03.2009, she was all alone in her house at 5:00 p.m., after her mother and aunt (MAUSI) gone to their mother’s place. The witness (P.W.1) further told that accused Moru Mandal came there when she was brooming room. She further told that from behind Moru Mandal caught her and closed her mouth. He threatened to kill her whereafter the accused undressed her, and committed rape on her. The victim further narrated that she started bleeding from her private parts. She further told that after her mother came back to her house she told about the incident to her. P.W.1 Sumati Gaeen further told that thereafter her mother (P.W.2 Laxmi Gaeen) took her to police. She further told that she was sent to hospital. The witness further told that after some days she made a statement (Ex. A1) in the court (recorded under section 164 Cr.P.C.). 9. Though P.W.1 Sumati Gaeen in her cross-examination took somersault, and denied that the incident had taken place in the manner she told in examination-in-chief, but it appears that she was won over by getting adjourned the case after her examination-in-chief was over. This fact further gets corroborated that when P.W.1 Sumati Gaeen was allowed to be cross-examined by prosecution after declaring her hostile, she against supported the prosecution case. 10. This fact further gets corroborated that when P.W.1 Sumati Gaeen was allowed to be cross-examined by prosecution after declaring her hostile, she against supported the prosecution case. 10. P.W.2 Laxmi Gaeen is mother of the victim who has supported the prosecution only to the extent that she lodged first information report, and she also turned hostile. Why she has not supported prosecution case is also apparent from the facts and circumstances of the case as accused Moru Mandal is the close relative of this witness, and succeeded in winning over the witness as such the trial court has rightly attempted to separate chaff from the grain. 11. Learned Amicus Curiae submitted that trial court has erred in law in not considering the fact that P.W.1 Sumati Gaeen and P.W.2 Laxmi Gaeen have turned hostile. And it is argued that the part of statements supporting prosecution case could not have been believed. On the other hand, learned counsel for the State contended that the trial court has rightly appreciated the evidence on record in coming to the conclusion that accused Moru Mandal committed rape on P.W.1 Sumati Gaeen. Having scrutinized the evidence on record carefully, this Court is of the view that it is not in every case that the prosecution story to be seen as doubtful for the reason that the witnesses have turned hostile. It is only when the court is unable to make definite opinion from two inconsistent statements of the witness as to which one is true, the benefit of doubt can be given to the accused but where the court comes to a definite conclusion that a particular part of the statement supporting prosecution case is only true account of fact the same need not be disbelieved. In the present case, the FIR is a prompt one. It has been mentioned in the FIR that after commission of rape the little girl started bleeding from her private parts. Forensic Laboratory Report (Ex. A12) corroborates said fact. Not only this, statement of the girl on 13.03.2004, recorded before the Judicial Magistrate under section 164 Cr.P.C. also corroborates the prosecution case. In the examination-in-chief P.W.1 Sumati Gaeen fully corroborates the prosecution case. Forensic Laboratory Report (Ex. A12) corroborates said fact. Not only this, statement of the girl on 13.03.2004, recorded before the Judicial Magistrate under section 164 Cr.P.C. also corroborates the prosecution case. In the examination-in-chief P.W.1 Sumati Gaeen fully corroborates the prosecution case. It appears that since the accused was her relative, after seeking adjournment by the defence, the witness was won over, and on the subsequent date in cross-examination she (P.W.1) turned hostile to the prosecution but again when she was allowed to be cross-examined by the prosecution (after declaring her hostile) she supported the prosecution case. 12. In the above circumstances, this Court is of the view that the trial court has rightly found that the charge of offence punishable under section 376 and 506IPC is proved beyond reasonable doubt against the accused Moru Mandal. Sentence awarded against the convict (appellant) is also just, proper and reasonable. Therefore, this Court finds no force in this appeal which is liable to be dismissed. Accordingly, the appeal is dismissed.