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2013 DIGILAW 528 (UTT)

KAMAL SINGH @ KAPIL v. STATE OF UTTARAKHAND

2013-08-16

PRAFULLA C.PANT

body2013
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 27.04.2012, passed by Additional Sessions Judge/Ist Fast Track Court, Haldwani, District Nainital, in Sessions Trial No. 49 of 2011, whereby said court has convicted the accused/appellant Kamal Singh Bisht @ Kapil, under section 363, 366 and 376 of I.P.C. The convict (appellant) has been sentenced by the trial court to rigorous imprisonment for a period of seven years and directed to pay fine of Rs.1,000/- under section 363 of I.P.C., rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 1,000/- under section 366 of I.P.C, and rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 1,000/- under section 376 of I.P.C. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is on 02.08.2010, PW2 Mohan Chandra Tewari (maternal uncle of the victim) lodged First Information Report (Ex-A1) at Police Station Kaladhungi, stating that his niece Neha (PW1) who was student of class X in the Government Girls Inter College, Bajunia Haldu, has been enticed away by the accused Kamal Singh Bisht @ Kapil on 01.08.2010 at 8.00.a.m. It is further mentioned in the report lodged by PW2 Mohan Chandra Tewari that his niece has been enticed away by the accused Kamal Singh @ Kapil in order to compel her to marry with him, and the girl (PW1) has taken jewellery and cash from the house. On the basis of said report F.I.R/Crime No. 44 of 2010 was registered relating to offences punishable under section 363 and 366 of I.P.C., against the accused Kamal Singh Bisht @ Kapil at Police Station Kaladhungi, on 02.08.2010 at 4.45 pm. The crime was investigated by PW7 Sub Inspector N.B.Bhatt. The girl (Neha) was recovered from the custody of accused Kamal Singh Bisht @ Kapil on 04.08.2010, around noon near Bhakhra Bridge, within the limits of Police Station Kaladhungi. Thereafter, Km. Neha (PW1) was taken for medical examination, and PW4 Dr. Anupama Hyanki medically examined the girl (Neha), who prepared Medical Examination Report (Ex-A3). She (PW4 Dr. Anupama Hyanki) did not find any mark of injury on the person of the girl. Thereafter, Km. Neha (PW1) was taken for medical examination, and PW4 Dr. Anupama Hyanki medically examined the girl (Neha), who prepared Medical Examination Report (Ex-A3). She (PW4 Dr. Anupama Hyanki) did not find any mark of injury on the person of the girl. The said Medical Officer took vaginal smear slides to get examined the presence of spermatozoa. Also, x-ray of joints of wrist, elbow etc, were advised by PW4 Dr. Anupama Hyanki to determine the age of the girl. PW5 Dr. M.S.Sharma, Senior Radiologist got the radiological examination done, and opined that on the basis of radiological examination, the age of the girl was above 18 years. It appears that on 05.08.2010, the girl (Neha) was taken to Magistrate, where she gave her statement under section 164 of Cr.P.C. In said statement recorded under section 164 of Cr.P.C., the girl denied that she was subjected to rape by the accused Kamal Singh Bisht @ Kapil. She further stated that since she was in love with the accused Kamal Singh Bisht @ Kapil, as such, she had gone with him on her own volition. Similar statement was recorded by the Investigating Officer also. After interrogating the witnesses, and on completion of investigation, the Investigating Officer PW7 Sub Inspector N.B.Bhatt submitted charge sheet (Ex-A11) against the accused Kamal Singh Bisht @ Kapil, for his trial in respect of offences punishable under section 363 and 366 of I.P.C, as he was of the opinion that the girl was minor. 4. The Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C, appears to have committed the case to the court of Sessions for trial. On 08.07.2011, Learned Additional Sessions Judge/Ist Fast Track Court, Haldwani, after hearing the parties framed charge of offences punishable under section 363 and 366 of I.P.C., to which the accused Kamal Singh Bisht @ Kapil pleaded not guilty and claimed to be tried. However, on 02.11.2011, additional charge of offence punishable under section 376 of I.P.C, was framed by the trial court to which also the accused pleaded not guilty. 5. The prosecution got examined PW1 Neha (victim), PW2 Mohan Chandra Tewari (informant and maternal uncle of the victim), PW3 Teerth Ram (neighbour of the victim), PW4 Dr. Anupama Hyanki (who medically examined the victim), PW5 Dr. 5. The prosecution got examined PW1 Neha (victim), PW2 Mohan Chandra Tewari (informant and maternal uncle of the victim), PW3 Teerth Ram (neighbour of the victim), PW4 Dr. Anupama Hyanki (who medically examined the victim), PW5 Dr. M.S.Sharma (Radiologist), PW6 Lalit Prasad Singh Sammal (An official of Government Girls Inter College Bajunia Haldu), and PW7 Sub Inspector N.B.Bhatt (who investigated the crime). 6. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C, in reply to which he stated that the evidence adduced against him was false. However, no evidence in defence was adduced. The trial court after hearing the parties, found that prosecution has successfully proved charge of offences punishable under section 363, 366 and 376 of I.P.C, against the accused Kamal Singh Bisht @ Kapil and convicted him accordingly. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of ‘ 1,000/- under section 363 of I.P.C., rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 1,000/- under section 366 of I.P.C, and rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 1,000/- under section 376 of I.P.C. In default of payment of fine on each count the accused was directed to undergo three months simple imprisonment. Aggrieved by said judgment and order dated 27.04.2012, passed by the trial court (Additional Sessions Judge Ist Fast Track Court, Haldwani, District Nainital), in Sessions Trial No. 49 of 2011, this appeal is preferred by the convict. (7) Before further discussion this court thinks it just and proper to mention the observations made by PW4 Dr. Anupama Hyanki, who medically examined the girl (Neha) on 04.08.2010. The observations made by said Medical Officer in Ex- A3 are being reproduced below:- “ Hymen is not intact, vagina admits two fingers, slightly bulky uterus, no redness, no swelling, no injury present ”. 8. Ex-A3 prepared by PW4 Dr. Anupama Hyanki shows that vaginal smear slides were taken for examination as to presence of spermatozoa, and xray of joints of wrist and elbow, both P.A and lateral view, were advised. 9. PW5 Dr. M.S.Sharma, Senior Radiologist of S.J. Jeena Base Hospital, Haldwani, has stated that after radiological examination he found that epiphysis of lower end of radius and ulna were found fused. 9. PW5 Dr. M.S.Sharma, Senior Radiologist of S.J. Jeena Base Hospital, Haldwani, has stated that after radiological examination he found that epiphysis of lower end of radius and ulna were found fused. He mentioned in his report (Ex-A5) that epiphysis in elbow joint were also found fused. The Radiologist opined that radiological age of the girl was above 18 years. On the basis of radiological examination PW4 Dr. Anupama Hyanki prepared her supplementary medical report (Ex-A4) in which apart from radiological age (above 18 years) of the girl, it is mentioned that on pathological examination no dead or alive spermatozoa were found. 10. From the above medical evidence on record, it is clear that the same is not suggestive of commission of rape on the victim. In other words the medical examination report does not corroborate the fact that the victim was subjected to rape. 11. PW1 Neha (victim) is the star witness of this case. Though, in her examination in chief she has stated that accused Kamal Singh Bisht @ Kapil enticed her away after threatening her of dire consequences, and kidnapped her, and she was also subjected to rape by the accused, but examination in chief does not get corroborated either from her statement recorded under section 161 of Cr.P.C by the Investigating Officer, or by the statement given by the girl under section 164 of Cr.P.C. 12. Copy of statement of the victim recorded on 05.08.2010 under section 164 of Cr.P.C by the Judicial Magistrate (Additional Civil Judge Junior Division/Judicial Magistrate, Haldwani), which is paper No. 6A in the lower court record shows that the victim told the Magistrate under section 164 of Cr.P.C., that her age is 17 years, and she knew the accused Kamal Singh Bisht @ Kapil for last three years. She further told that they were friends and wanted to get married to each other. It is also stated by Km. Neha before the Magistrate that she and accused requested her parents to agree for their marriage, but the parents did not agree on which on 01.08.2010, she left her house and called the accused Kamal Singh Bisht @ Kapil, where after the two went to Moradabad from there, they went to Rishikesh and Hardwar. She further stated that during that period accused did not established any physical relation with her. She further stated that during that period accused did not established any physical relation with her. The above statement of the girl recorded by the Magistrate under section 164 of Cr.P.C, shows that neither accused committed rape on the girl (Neha), nor he kidnapped her. Assuming that she was 17 years old on that day, (on the day of incident) but she has told that she left her house on her own, and thereafter she called the accused to take her to Moradabad. Similar statement of the girl appears to have been recorded by the Investigating Officer. As such, her statement in the examination in chief is nothing but the improvement and after thought which is neither corroborated from the medical evidence, nor corroborated from her statement under section 164 of Cr.P.C. 13. Therefore, after re-appreciating the evidence on record and considering the submissions of learned counsel for the parties, this court finds that the trial court has erred in law in holding that the accused Kamal Singh Bisht @ Kapil is guilty of charge of offences punishable under section 363, 366 and 376 of I.P.C. It is relevant to mention here that in the First Information Report itself it is mentioned that the girl had taken jewellery and cash from her house. 14. For the reasons as discussed above, this appeal deserves to be allowed. Accordingly, the appeal is allowed. The impugned judgment and order dated 27.04.2012, passed by Additional Sessions Judge/Ist Fast Track Court, Haldwani, District Nainital, in Sessions Trial No. 49 of 2011, recording conviction and sentence against the accused Kamal Singh Bisht @ Kapil under section 363, 366 and 376 of I.P.C., is hereby set aside. The accused Kamal Singh Bisht @ Kapil (appellant) is acquitted of the charge of offences punishable under section 363, 366 and 376 of I.P.C. He is on bail. He need not to surrender. Lower court record be sent back.