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2013 DIGILAW 427 (UTT)

Sachin v. State of Uttarakhand

2013-07-02

SUDHANSHU DHULIA

body2013
JUDGMENT Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Pankaj Miglani, Advocate for the appellants and Mr. M. A. Khan, Brief Holder with Mr. Hari Om Bhakuni, Brief Holder for the State. 2. At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of the I.P.C. By an amendment in the I.P.C., Section 228A has been inserted vide Act No.43 of 1983, which bars the disclosure of the identity of the prosecutrix by publication and in fact it makes it an offence. Although, printing and publication in a law journal may not be included in the definition of “printing and publication”, yet purely for reasons of abundant precaution, the name of the alleged victim has not been mentioned in the present judgment and the victim is only addressed here as the “prosecutrix”. 3. The present appeal arises out of the judgment and order dated 07.04.2012 passed by the Additional Sessions Judge / 1st F.T.C., Roorkee, District Haridwar in Sessions Trial No.175/2010, whereby the appellant i.e. Sachin was convicted under Sections 363/34, 366/34 and 376 I.P.C. and sentenced to undergo rigorous imprisonment for 5 years, 5 years and 7 years and fine of Rs.1,000/-, Rs.2000/- and Rs.3000/- respectively. In default of payment of fine of Rs.1,000/- Rs.2000/- & Rs.3000/-, appellant Sachin has to further undergo imprisonment for one month, two months and three months respectively. Rest of the appellants i.e. Soni & Popin were convicted under Sections 363, 366 read with Section 34 I.P.C. and sentenced to undergo rigorous imprisonment for 5 years in each count and a fine of Rs.1,000/- each. In default of payment of fine of Rs.1,000/-, the appellants Soni and Popin have to further undergo imprisonment for one month. All the sentences are to run concurrently. However, accused Hari and Karmbir were acquitted from the charges leveled against them. 4. The brief facts of the prosecution story are that an F.I.R. was lodged by the father of the prosecutrix i.e. Harpal Singh S/o Kantu Singh at Police Station Roorkee, Haridwar on 10.12.2009 at 5PM alleging that on 04.12.2009 at about 9:30 AM when his daughter aged about 16 years (date of birth is 02.04.1993) was going to her school at Bailri, she was kidnapped, on her way by the accused persons (i.e. Sachin, Soni & Popin) near the agricultural field of one Balbir at “Serhad Kehanpur”. The accused persons i.e. Sachin, Soni and Popin, who were riding on motorcycles, took her daugher on their motorcycles. The informant started a search for her in every possible place, but did not succeed in locating her. Later, he was informed in the evening of same day (i.e. 04.12.2009) by Om Prakash and Rajendra Singh that they had seen the prosecutrix on a pillion of a motorcycle, alongwith the accused persons. It was further alleged that two persons i.e. Hari Singh S/o Johari and Karmbir S/o Namalam were also involved in the matter. There two are the father of Sachin and Soni, and Popin, respectively. 5. The prosecutrix was recovered on 11.12.2009 at 10:05 PM from the possession of accused Sachin at Rampur Barrier, near vegitable market, Roorkee. She was then handed over to her father. Sachin was arrested. The rest of the accused persons i.e. Soni and Popin were arrested on 08.01.2010 by Constable Vijaypal Singh. 6. The prosecutrix was medically examined on 14.12.2009 at 1:30 P.M. at Civil Hospital, Roorkee, District Haridwar by Dr. Nisha Gupta PW4. The medical report states that axillary and pubic hair were well developed. There was no sign of any external or internal injury on the body of the prosecutrix. Vagina admits one and a half (i.e. 1½) fingers easily. Vaginal smear was taken and sent for pathological examination, which did not detect any spermatozoa. The supplementary medical report shows that the prosecutrix was more than 17 years, but less than 18 years of age. 7. The matter was investigated and a chargesheet was filed against the accused persons. Thereafter, the matter was committed to Sessions, where charges against the accused persons i.e. Sachin S/o Hari, Soni S/o Hari, Popin, Hari and Karmbir were framed on 14.05.2010. 8. In order to prove its case, the prosecution examined as many as seven witnesses. The prosecutrix has given her statement under Section 161 Cr.P.C. on 16.12.2009 that she is about 19 years of age and she wants to go back with her father. This is the only the statement recorded under Section 164 Cr.P.C. 9. The main witness of the prosecution is the prosecutrix herself, who was examined as PW2 on 04.01.2011. She states that she is about 16 years of age. On 04.12.2009 at about 9:30AM when she was going to school, she was kidnapped by accused Sachin, Soni and Popin. This is the only the statement recorded under Section 164 Cr.P.C. 9. The main witness of the prosecution is the prosecutrix herself, who was examined as PW2 on 04.01.2011. She states that she is about 16 years of age. On 04.12.2009 at about 9:30AM when she was going to school, she was kidnapped by accused Sachin, Soni and Popin. They asked her to sit on the motorcycle. There were two motorcycles, out of which, one was being ridden by accused Sachin and on another motorcycle accused Soni and Popin was on the pillion. Thereafter, they took her to a house at Roorkee where she was kept for about 8 days. During these eight days she was raped by accused Sachin against her wishes. Accused Soni and Popin remained outside the room and accused Sachin raped her for about 8 days and at about 10PM on 11.12.2009 they were caught by the police and thereafter she was put in the police jeep. In the police station, her father and mother had also reached. In her cross examination she states that there were two motorcycles, one motercycle was being ridden by accused Sachin and on second motorcycle accused Soni & Popin were sitting. Sachin was alone in his motercycle. He asked her to sit on his motorcycle and threatened her that if she does not sit on the motorcycle, they would shot her. She though did not see any gun with the accused persons. On a suggestion being made to the prosecutrix as to why she did not raise any alarm, she replied that she was too scared. At one point of time, she states that a black band was put on her eyes. The prosecutrix was taken from one place to another, but she kept silent. 10. The other main witness of the prosecution is the father of the prosecutrix i.e. Harpal Singh, who was examined as PW1. PW1 states that he was informed in the evening of 04.12.2009 (i.e. date of incident) by Om Prakash and Rajendra Singh that they had seen the prosecutrix in the company of accused persons on the motorcycles. The matter was reported in the evening of 04.12.2009 to the father of the prosecutrix. PW1 states that he was informed in the evening of 04.12.2009 (i.e. date of incident) by Om Prakash and Rajendra Singh that they had seen the prosecutrix in the company of accused persons on the motorcycles. The matter was reported in the evening of 04.12.2009 to the father of the prosecutrix. The delay in lodging the F.I.R. is absolutely fatal to the prosecution in as much as the F.I.R. was lodged on 10.12.2009, whereas the incident is said to have been alleged on 04.12.2009 after a delay of more than 5 days. 11. It is true and a well settled position of law that the conviction of an accused can be based on the sole testimony of the prosecutrix, provided, however, that the testimony be truthful, and inspires confidence. The medical reports also suggest that no marks of injury was found on her body and as per the radiologist report, the prosecutrix was more than 17 years, but less than 18 years of age. Therefore, consent became important here. If at all there was a sexual intercourse between the prosecutrix and the accused on the basis of the available evidence, consent of the prosecutrix seems to be apparent. Therefore it cannot be termed as a rape. 12. Secondly, the delay in lodging the F.I.R. is absolutely fatal to the prosecution in as much as the F.I.R. was lodged on 10.12.2009, whereas the incident is said to have been alleged on 04.12.2009, inpsite of fact that the father of the prosecutrix was informed in the evening of 04.12.2009 (i.e. date of incident) by Om Prakash and Rajendra Singh that they saw the accused persons and the prosecutrix riding on the motorcycles on the date of incident. This Court is of the opinion that a benefit of doubt was liable to be given to the accused / appellants as the prosecution has not fully established the charges against the accused / appellants, and the case has not been established beyond reasonable doubt, particularly in view of the conduct of the prosecutrix. Reasonable doubt always belongs to the accused. The prosecutrix also throughout remained silent and did not raise alarm. Therefore, she seems to be a consenting party. Reasonable doubt always belongs to the accused. The prosecutrix also throughout remained silent and did not raise alarm. Therefore, she seems to be a consenting party. Moreover, it has been established by the medical evidence that the prosecutrix more more than 17 years of age, though less than 18 years, and the medical examination shows that no injury was found on the body of the prosecutrix. 13. The appellants are acquitted for the offence punishable under Section 376 & 366 IPC. Conviction of the appellants under Section 376 & 366 IPC is set aside. Having said this, however, it is clear that an offence under Section 363 I.P.C. is made out against the accused persons for the simple reason that the prosecutrix was less than 18 years of age at the time of incident and that she was taken by the appellants from the lawful custody of her guardians. The trial court has hence rightly convicted the appellants under Section 363 I.P.C. 14. The appeal is hereby partly allowed to the above extent. However, the conviction under Section 363 IPC is upheld, sentence awarded under Section 363 I.P.C. is though modified to the period what the accused have already undergone and all appellants are directed to pay fine of Rs.1000/- each (Rupees one thousand each only) under Section 363 I.P.C. instead of sentence of imprisonment of five years & fine of Rs.1000/- as awarded by the trial court. All the appellants shall deposit the fine of Rs.1000/- in the court concerned within a period of four months from today. In default of which the accused shall undergo imprisonment of one month each. Lower Court record be sent back.