Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 51 (UTT)

BHUPENDRA KUMAR SHARMA v. STATE OF UTTARANCHAL

2013-02-22

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S.Verma, J. (Oral)} This appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 22nd January 2001, passed by learned Additional Sessions Judge/Special Judge Anti Corruption, U.P.(East) Dehradun, in Sessions Trial No. 26 of 2000 State Vs. Bhupendra Kumar Sharma, whereby the accused-appellant Bhupendra Kumar Sharma has been convicted under Section 376 and 506 of the Indian Penal Code (hereinafter referred to as I.P.C.) and has been sentenced to undergo ten years’ rigorous imprisonment and a fine of Rs. 2,000/- for the offence under Section 376(1) of the I.P.C. and to undergo six months’ R.I. for the offence under Section 506 of the I.P.C. In default of payment of fine, the accused-appellant has been ordered to further undergo six months’ R.I. However, both the sentences were ordered to run concurrently. 2. Heard learned Amicus Curiae for the appellants and learned Additional G.A. for the State. 3. Prosecution story as emerges from the record, in brief, is that the accused-appellant Bhupendra Kumar Sharma was living in the house of the complainant Om Prakash Agarwal lodged a written report with the police out post on 23-10-1999, alleging therein that his daughter Aruna Tyagi and her minor daughter, aged about 12,1/2 years used to live with his own family and on that day in the night at about 3-4 a.m., the prosecutrix (Priyanka) had gone to the bath-room to pass urine. The accused who was living as paying guest in the first floor suddenly came out and induced the prosecutrix to his room and forcibly committed rape with her and thereafter, the accused threatened her to kill in case she disclosed the incident to anybody. 4. In the morning, the prosecutrix in a shy condition disclosed the entire incident of rape having been committed by the accused to her mother and then the complainant got the information of committing rape by accused. Thereafter, the accused, who had confined himself in the room by bolting the door from inside in order to escape from that place was apprehended with the help Alam Khan and other persons by using necessary force. The complainant handed over the written report to the Incharge of Police Outpost Bindal (Dehradun). Thereafter, the accused, who had confined himself in the room by bolting the door from inside in order to escape from that place was apprehended with the help Alam Khan and other persons by using necessary force. The complainant handed over the written report to the Incharge of Police Outpost Bindal (Dehradun). On the basis of the written report (Ext Ka-1), a case was registered against the accused at Case Crime No. 51/99 under Section 376(II)/506 I.P.C. in the general diary and Check FIR (Ex.Ka-3) was prepared. 5. The investigation was taken up by S.I. Y.K.Sharma, Incharge Police Out-post Bindal, P.S.Cantt. The prosecutrix was also brought to the police outpost, wherefrom she was sent along with lady constable Neelam Singh for medical examination to the Women Hospital, Doon Hospital, Dehradun, where the proxsecutrix was medically examined by Dr. Mamta Sachan, Medical Officer at 2 p.m. on 23-10-1999. 6. The doctor found breast of the prosecutrix developed and axillary and pubic hairs present. On local examination, no marks of injury were found. The hymen was old torn and vagina admitted one finger easily. The vaginal smear was taken for clinical examination and the girl was sent for X-ray. 7. X-ray was conducted for ascertaining the age of the girl and on the basis of X-ray report, the Medical Officer prepared Final Report on 28.10.1999, the extract whereof reads as under:- “Epiphysis lower and radius ulna not fused with respective shaft. Epiphysis around knee joint ankle joint not fused with respective shaft. Epiphysis around elbow joint fused except medial epicondyle which is partially fused. All carpel bones present.” The doctor has concluded that the age of the girl is between twelve and fourteen years, but has observed that no opinion about rape could be given. 8. The prosecutrix was also produced before the Magistrate for her statement under Section 164 Cr.P.C. on 25-10-1999. Additional Chief Judicial Magistrate IV, Dehradun recorded the statement under Section 164 of the Cr.P.C. (Ext. Ka-2). 9. The Investigating Officer recorded the statements of the witnesses under Section 161 Cr.P.C. and after completing necessary formalities the police found a prima facie case against the accused and submitted a charge-sheet against him under Sections 376/506 I.P.C. 10. Additional Chief Judicial Magistrate IV, Dehradun recorded the statement under Section 164 of the Cr.P.C. (Ext. Ka-2). 9. The Investigating Officer recorded the statements of the witnesses under Section 161 Cr.P.C. and after completing necessary formalities the police found a prima facie case against the accused and submitted a charge-sheet against him under Sections 376/506 I.P.C. 10. On receipt of the charge-sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., learned Additional C.J.M. II, Dehradun committed the case to the Court of Session for trial by his order dated 1-2-2000. 11. The learned Additional Sessions Judge to whom the case was transferred for trial of the accused framed a charge under Section 376/506 of the I.P.C. on 29-2-2000. The accused pleaded not guilty to the charge and claimed to be tried. The trial of the accused was ordered to be held in the camera. 12. The prosecution in support of its case has examined P.W.1 Km. Priyanka Agrawal (prosecutrix), the complainant Om Prakash Agrawal, as P.W.2, Smt. Aruna Tyagi, mother of the prosecutrix, P.W.3, Const. Virendra Singh, P.W.4, Dr. Manju Sachan, P.W. 5, Dr. P.K.Nautiyal ( P.W.6), Smt. Shashi Agrawal, P.W. 7, S.I. Y.K.Sharma, the investigating Officer P.W.8. 13. The prosecution filed documentary evidence marked as Ext. Ka-1 to Ext. Ka-16 including the report of serologist of Forensic Science Laboratory, Agra (Ext. Ka-9), which shall be referred to in the body of the judgment as and when required. 14. All the oral and documentary evidence was put to the accused, under Section 313 Cr.P.C., relating to which the accused alleged that the evidence was false and pleaded that he has been implicated falsely due to enmity. However, no evidence in defence was adduced on his behalf. On this, the trial Court, after hearing the parties, found all the accused-appellant guilty of the charges framed against him under Section 376 and 506 of the I.P.C. and convicted him accordingly vide impugned order of conviction passed by said Court, and after hearing on sentence, sentenced him to undergo ten years’ rigorous imprisonment and a fine of Rs. On this, the trial Court, after hearing the parties, found all the accused-appellant guilty of the charges framed against him under Section 376 and 506 of the I.P.C. and convicted him accordingly vide impugned order of conviction passed by said Court, and after hearing on sentence, sentenced him to undergo ten years’ rigorous imprisonment and a fine of Rs. 2,000/- for the offence under Section 376(1) of the I.P.C. and to undergo six months’ R.I. for the offence under Section 506 of the I.P.C. In default of payment of fine, the accused-appellant has been ordered to further undergo six months’ R.I. However, both the sentences were ordered to run concurrently, as mentioned above. 15. Aggrieved by the order of conviction and sentence passed by the trial Court, the accused Bhupendra Kumar Sharma has preferred the present appeal. 16. I have heard learned Amicus Curiae appearing on behalf of the accused-appellant as well as learned Additional Government Advocate for the State and perused the lower court record. 17. Before the trial Court, the prosecutrix has stated in her testimony on oath that she was studying in Class VIII and her date of birth is 26-1-1987. She stated in unequivocal term that in the night of 22/23-10-1999, she had slept with her maternal grand mother on the first floor of the house and that in adjoining room, the accused used to live as a paying guest. She also stated that she came out of her room to discharge urine in the darkness. After urinating when she was going back to her room, the accused-appellant forcibly took her to his room and bolted the room from inside. She was forced to lie on the folding cot and after putting off her under-wear, the accused committed rape with her. She stated that after the rape was committed with her, blood started oozing from her vagina. In her examination-in-chief, the prosecutrix has narrated the entire incident of rape by the accused with minute details. She also proved her statement which was recorded under Section 164 Cr.P.C. before the trial Court. The prosecutrix was cross-examined and from her cross-examination nothing could be elicited that she was not speaking the truth before the Court and her statement remained unshaky on material points. 18. She also proved her statement which was recorded under Section 164 Cr.P.C. before the trial Court. The prosecutrix was cross-examined and from her cross-examination nothing could be elicited that she was not speaking the truth before the Court and her statement remained unshaky on material points. 18. Besides her own statement, the incident of rape having been committed by the accused finds corroboration from the statement of Om Prakash Agarwal (PW 2), who is the maternal grandfather of the victim. He stated that his mother in-law Sumitra Devi, wife Shashi Agarwal, son Mohit, daughter Aruna Tyugi and his maternal granddaughter Priyanka live with him in the same house in which in one room the accused was living as a paying guest. He has also corroborated the testimony of victim that when Sumitra Devi found Km. Priyanka missing, she had raised alarm. Consequently, other members of family reached upstairs and knocked at the door of accused’s room, which was bolted from inside. At the beginning the accused did not open the door. P.W.2 then brought his family friend Alam Khan with him for help and he was told about the commission of rape by the accused with Priyanka. This witness has proved the FIR (Ext. Ka-1). 19. Smt. Aruna Tyagi (P.W.3) the mother of the victim also proved the age of her daughter to be minor and she identified the accused in the Court and confirmed that the accused was living in their house as a paying guest. She reiterated the entire prosecution story with regard to commission of rape by the accused and corroborated the statements of P.W.1 and P.W.2. She also stated that on examination she found Priyanka’s vagina bleeding soon after the incident of rape by the accused. 20. Const. Virendra (P.W 4) was posted as constable clerk at the police outpost Bindal at the relevant time. He stated to have prepared Check report on the basis of written report (Ext Ka-1) and that he registered the case against the accused under Sections 376/506 I.P.C. and entries to that effect was made in the general diary. P.W. 4 has proved the Check report (Ext. Ka-3) and the extract of G.D. (Ext. Ka-4). He stated to have prepared Check report on the basis of written report (Ext Ka-1) and that he registered the case against the accused under Sections 376/506 I.P.C. and entries to that effect was made in the general diary. P.W. 4 has proved the Check report (Ext. Ka-3) and the extract of G.D. (Ext. Ka-4). He specifically stated that while lodging the report of the incident, victim Priyanka and the accused were also brought at the police outpost, where the blood stained underwear of the victim was produced and sealed then and there and entries to that effect were made vide Ext. Ka-5. 21. PW5 Dr. Manju Sachan and P.W.6 Dr. R.P.Nautiyal are the medical witnesses. P.W.5 has proved the injury reports referred hereinbefore prepared by her on examination of the prosecutrix and on the basis of X-ray report. P.W.6 is the Senior Radiologist who got conducted X-ray of Km. Priyanka. He identified the X-ray plate (Ext.1) and also proved his report (Ext. Ka-8). He deposed that the victim was between 12-14 years of age on the date of her medical examination. 22. P.W.7 who is maternal grandmother of the victim is not an eye-witness of the incident of rape but stated that the victim has narrated the incident to her mother in her presence. She disclosed that the vagina of Km. Priyanka was bleeding when she had seen her just after the incident. She also identified the underwear of Km. Priyanka (Ext.2), which the victim was wearing at the time of inciedent. She also found some blood-stains on the Samij of Km. Priyanka, which was worn by the prosecutrix at the time of incident. This witness produced that Samij in the Court, which was marked as Ext. 3. 23. Sri Y.K.Sharma PW 8 is the I.O. of the case, who had conducted the investigation of the case and submitted charge-sheet against the accused-appellant. From his examination, it is evident that he had investigated the case in usual manner. His evidence need not require much scrutiny since in the case at hand, the presence of the accused in the same house has not been disputed and his production at the police outpost by the prosecution witnesses is also not disputed. 24. From his examination, it is evident that he had investigated the case in usual manner. His evidence need not require much scrutiny since in the case at hand, the presence of the accused in the same house has not been disputed and his production at the police outpost by the prosecution witnesses is also not disputed. 24. The statement of the accused was recorded under Section 313 Cr.P.C. He admitted the fact that on 23-10-1999, he was living as a paying guest in a room of the first floor of the house where the prosecutrix and her other family members were living in House No. 65, Chakrata Road Yamuna Colony, Dehradun. He also admitted that in the first floor, a bathroom-toilet situates in the Verandah near his room. However, other contention were denied by him. 25. In the case at hand, the accused in his statement under Section 313 Cr.P.C. lastly stated that the he would file his written statement. The learned trial Court has observed in that regard as under:- “The accused also submitted his written statement and made similar admissions therein. He, however, suspected the paternity of the victim and raised doubts on the character of victim’s mother. He alleged that the victim’s mother wanted to have wed-lock with him and had proposed for the same which was taken very lightly by him. He also alleged that the victim’s mother was having illicit relations with Alam Khan and he had seen both of them in objectionable condition. Since that day both of them were having enmity with him and besides they wanted to oust him from the room. He lastly alleged that he has falsely been implicated by the complainant at the instance of victim’s mother on account of the reasons disclosed hereinabove.” 26. In this appeal, the learned Amicus Curiae has contended that the statement of the prosecutrix has not been recorded by the learned trial Judge in view of the provisions of Section 118 of the Evidence Act and there are many contradictions in the two statements of the prosecutrix-one made under Section 164 Cr.P.C. and the other made by the victim PW 1 before the trial Court. It has also been contended that since the victim is a child witness, her evidence has to be scrutinized with caution in accordance with law. 27. It has also been contended that since the victim is a child witness, her evidence has to be scrutinized with caution in accordance with law. 27. Learned Amicus Curiae appearing for the appellant has further contended that in the statement recorded under Section 164 Cr.P.C., the prosecutrix has stated that when accused called her, she went in his room, but in her statement before the trial Court, she stated that the accused dragged her by force and put his hand on her mouth, when she tried to raise an alarm and thereafter he raped her. Learned Amicus Curiae has also drew attention of the Court that the prosecutrix has stated as PW 1 that her underwear was put off by the accused and after the incident of rape, the same was not worn by her. According to the prosecution story, the underwear was recovered from the prosecution witnesses and not from the custody of the accused, therefore, the prosecution story so far as recovery of the underwear is doubtful. 28. I have considered the submissions made by the learned amicus curiae vis-à-vis the statements given by the prosecutrix under Section 164 Cr.P.C. as well as in the Court. 29. It may be noted here that the learned trial Judge before recording the evidence of the prosecutrix (minor girl) had asked question in the beginning and as such the provisions of Section 118 of the Evidence Act had been complied with in the case at hand. 30. So far as the minor contradictions appearing in the prosecution story in the statements of the prosecutrix and other witnesses are concerned, they are bound to occur. I have gone through the statement recorded under Section 164 Cr.P.C. of the prosecutrix as well as the statement recorded in the Court, but I do not find any material contradiction in the two statements to hold that rape was not committed on her by the accused. The prosecutrix was admittedly a minor when the incident took place. Moreover, the evidence in the Court had been recorded after a lapse of considerable period. It is but natural that even in the testimony of a matured witnesses some minor contradictions would creep in by lapse of time. The prosecutrix was admittedly a minor when the incident took place. Moreover, the evidence in the Court had been recorded after a lapse of considerable period. It is but natural that even in the testimony of a matured witnesses some minor contradictions would creep in by lapse of time. It is pertinent to mention here that the custody of the accused to the police, who was admittedly a paying guest in that house, is not disputed soon after the incident of rape with the prosecutrix. Moreover, it is matter of common prudence that family members and the prosecutrix herself would not dare to appear in the witness box and give evidence boldly to falsely implicate an innocent in a crime like rape case and would dare to spoil the career of a minor girl as well as to blemish the repute of their family. 31. Moreover, in the case at hand, the minority of the prosecutrix cannot be doubted at all. There is medical evidence to corroborate the testimony of the prosecution witnesses that Km. Priyanka PW1 was aged about 12-14 years of age at the time of the incident. In addition to that, the accused in his statement under Section 313 Cr.P.C. has not disputed the age of prosecutrix to be 13 years while giving reply to question no.2. The learned trial Judge has elaborately considered all the facts and evidence on record in the impugned judgment of conviction and sentence passed against the appellant. It is not necessary to reiterate the same thing again in the body of this judgment. Whether the prosecutrix was dragged by the accused to him room by force or the prosecutrix on the call given by the accused (paying-guest in the same house) entered his room does not make any difference since Km. Priyanka was a minor and the accused has been convicted for the offence of rape and not of assault (dragging). 32. The accused-appellant in order to escape himself from legal punishment also threatened the prosecutrix to kill in case she exposed the story of rape to anybody. I do not find any reason to disbelieve the testimony of prosecution witnesses on the point of rape and threat to life having been given by the accused to the victim. Therefore, the charge under Section 506 I.P.C. stood proved against the accused. 33. I do not find any reason to disbelieve the testimony of prosecution witnesses on the point of rape and threat to life having been given by the accused to the victim. Therefore, the charge under Section 506 I.P.C. stood proved against the accused. 33. So far as the recovery of underwear of the prosecutrix is concerned, I do not find reason to hold that the recovery made by the police is in any way fictitious just falsely punish the appellant in the rape case. The prosecution has tendered the report of serologist (Ext. Ka-9). The said report reveals that human bloodstains were found on the said underwear. Sperms and smear, semen were also found. 34. Having considered the entire prosecution evidence on record, this Court is of the considered view that the offence of commission of rape punishable under Section 376(1) of the I.P.C. is also fully established against the accused-appellant beyond the shadow of reasonable doubt and that the learned Trial Court has rightly convicted the accused both under Sections 376(1) and 506 of the I.P.C. Consequently, the appeal preferred by the appellant against his conviction under aforesaid Sections lacks merits and must fail. 35. At this stage, learned Amicus Curiae submitted that in this case, the accused has been given harsh punishment of ten years’ R.I.; that there has been no criminal history of the accused and that the accused was aged only 21 years at the time of commission of rape, therefore, the sentence passed against the accused be suitably reduced. 36. Considering the age of the accused-appellant, who was aged about 21 years at the relevant time and the attending circumstances of the case including that no criminal history has been attributed to the accused, this Court is of the view that the ends of justice would be served if the sentence of 10 years’ R.I. is reduced and the accused-appellant is sentenced to seven years’ R.I. for the offence under Section 376(1) I.P.C. The appeal against the conviction of the accused under Sections 376(1) and 506 I.P.C. is dismissed. However, considering the age of the accused and the attending circumstances of the case, the term of sentence passed against the accused under Section 376(1) I.P.C. is reduced to seven years R.I. Rest of the sentence passed by the trial Court against the accused-appellant is maintained. 37. The accused-appellant is on bail. However, considering the age of the accused and the attending circumstances of the case, the term of sentence passed against the accused under Section 376(1) I.P.C. is reduced to seven years R.I. Rest of the sentence passed by the trial Court against the accused-appellant is maintained. 37. The accused-appellant is on bail. His bail bonds are cancelled and the sureties are discharged. The accused-appellant shall be taken into custody and sent to jail to serve out the sentence awarded to him. The Registry is directed to send back the record to the Court concerned for compliance of the Court’s order.