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2013 DIGILAW 540 (UTT)

Num Kumar @ Rajkumar v. State of Uttarakhand

2013-08-20

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. This criminal appeal challenges the judgment and order dated 27.01.2007 passed by the Addl. Sessions Judge, Roorkee, District Haridwar in S.T. No.288/2003 whereby the appellant-Num Kumar @ Rajkumar was convicted under Section 376 I.P.C. and sentenced to undergo imprisonment for seven years and a fine of Rs.5,000/-. In default of payment of fine of Rs.5,000/-, the appellant has to further undergo imprisonment for one year. However, the appellant was acquitted for the offence punishable under Section 506 I.P.C. 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 brief facts of the prosecution story are that an F.I.R. was lodged by the father of the prosecutrix i.e. Ram Singh at Police Station Bhagwanpur, Haridwar on 16.05.2003 at 12:45 PM alleging that in the intervening night of 15/16th May, 2003 his daughter aged about 15 years was sleeping in her house and when in the midnight his daughter, who was suffering from loose-motions, went out of the house to relieve herself when the accused Num Kumar @ Rajkumar caught her and dragged her forcibly to his house, which was adjoining to the house of complainant. There the prosecutrix was raped by the accused in his house. The parents of the prosecutrix searched for their daughter throughout the night, but all in vain. In the morning of 16.05.2003, the prosecutrix came to her house and informed her parents that she was raped by accused in his house. Thereafter, the prosecutrix was medically examined by Dr. (Ms.) B. L. Narang PW3 at J.N.S.M. Government Combined Hospital, Roorkee on 16.05.2003 at 1:45PM. Medical report states that axillary hairs are thin and pubic hair are also thick. Both breasts are developed. The medical report further states that there was no sign of injury on the body of the prosecutrix. Thereafter, the prosecutrix was medically examined by Dr. (Ms.) B. L. Narang PW3 at J.N.S.M. Government Combined Hospital, Roorkee on 16.05.2003 at 1:45PM. Medical report states that axillary hairs are thin and pubic hair are also thick. Both breasts are developed. The medical report further states that there was no sign of injury on the body of the prosecutrix. The hymen is old torn admits only one finger easily and that she is not habitual to sexual intercourse. The prosecutrix was sent for bone ossification test in order to determine her age. The radiologist report indicates that the age of girl was less than 17 years and more than 16 years. The radiologist report further states that no definite opinion can be given about rape. The pathological report states that no spermatozoa was seen dead or alive. 4. The matter was investigated and a charge-sheet was filed against the accused person. Thereafter, the matter was committed to Sessions, where charges against the accused appellant were framed under Section 376 & 506 IPC on 05.02.2004. 5. At this stage, it needs to be mentioned here that from the evidence on record it appears that the appellant was about 17 years of age. 6. In order to prove its case, the prosecution has examined as many as four witnesses, out of which, Ram Singh PW1 is the complainant and father of the prosecutrix. The prosecutrix was examined as PW2, Dr. B. L. Narang, who was the medical officer, was examined as PW3 and Sub Inspector Hemendra Singh, who investigated the matter, was examined as PW4. Apart from the prosecution witnesses, the defence has also examined two witnesses, namely Padam Singh DW1, who was ex-Gram Pradhan of the village and Joginder Singh DW2 who belongs to another village. 7. Ram Singh, who is the father of the prosecutrix, was examined as PW1. He states in his examination in chief that his daughter was about 14 years of age at the time of the alleged incident and since on the fateful night his daughter was having stomachache, and loose-motions she went outside the house to defecate. When she went out, she was caught by the accused, who dragged her inside his house and then she was raped. The parents of prosecutrix searched their daughter throughout the night but in vain. In the morning, the prosecutrix came and narrated the entire incident to her parents. When she went out, she was caught by the accused, who dragged her inside his house and then she was raped. The parents of prosecutrix searched their daughter throughout the night but in vain. In the morning, the prosecutrix came and narrated the entire incident to her parents. PW1 further states that the Salwar which the prosecutrix was wearing on the fateful night was handed over to the police and the said Salwar was having semen stains. He identified the said Salwar, which was kept in a sealed cover, in the court. In his cross examination, his daughter was studying in Class V, but he does not know the exact date of birth of his daughter and he only stated that his daughter was about 15 years of age and according to him the incident has occurred at about 1:30AM in the night. In the night, when his daughter went out to answer the call of nature, she was caught by the accused. The house of the accused was about 10 pace away from his house. He recognizes the fact that her daughter did not sustain any injury in the incident of rape. 8. The prosecutrix was examined as PW2, who states that the house of accused was next to her house and while she went outside to answer the call of nature, the accused caught her and dragged her in his house where the accused stripped of her Salwar and raped her inspite of protest and resistance by the prosecutrix. Thereafter, the accused threatened her in the morning that she should not disclose the incident to anyone. In the cross examination, she states that at the time of incident she was studying in Class V and later she left her studies. She further states in the cross examination that when she was being raped, she resisted and also tried to raise a cry, on this, accused clubbed her mouth with his hand, conseauently, she could not shout. The accused has two rooms, out of which, the parents of accused used to reside in one room, but since it was summer season, the parents were sleeping outside in the ‘varanda’. 9. The accused has two rooms, out of which, the parents of accused used to reside in one room, but since it was summer season, the parents were sleeping outside in the ‘varanda’. 9. DW1 and DW2 have stated that the accused is of good character and they have tried to present a picture that the accused has been falsely implicated in this case and the day before the incident appellant had seen the prosecutrix with another boy and had complained to her parents. Because of this reason, the appellant has been falsely implicated in this case. This Court finds that the evidence of these two defence witnesses is totally untrustworthy and does not inspire confidence. 10. Having said this, however it does not appear to be a case of rape for reasons that only the evidence before this Court is the evidence of the prosecutrix herself, one cannot lose sight of the fact that at the time of alleged incident, the prosecutrix was about 17 years of age, and it is evident from the records and that both the prosecutrix and the appellant are neighbours. Considering the fact that the rape was committed in the house of accused, especially when the entire family of the accused was sleeping in the ‘varandah’ of the house and that on the face of the evidence of the prosecutrix herself, she was taken inside the accused’s house by force and at that time she tried to resist and to raise a cry, this Court is of the opinion that the probabilities are extremely low that inspite of such a resistance and noise being made by the prosecutrix, none of the family members of the accused, who were sleeping in the same house, did not wake up. Moreover, there is no injury on the body of the prosecutrix. From all available evidence and as per the radiologist report, the prosecutrix was less than 17 years of age and more than 16 years of age at the time of alleged incident. In his statement under Section 313 of Cr. P.C. the age of the accused is given as 22 years. This statement was recorded on 03.01.2007. The alleged rape is of 15.05.2003. Therefore, the accused himself at that time was little over 18 years of age. 11. In the present case, “consent” becomes important factor. In his statement under Section 313 of Cr. P.C. the age of the accused is given as 22 years. This statement was recorded on 03.01.2007. The alleged rape is of 15.05.2003. Therefore, the accused himself at that time was little over 18 years of age. 11. In the present case, “consent” becomes important factor. Considering the above, it appears from the evidence, if at all can only be a case of a consensual sex. 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 that the testimony of the prosecutrix is truthful and inspires confidence. In the present case, the testimony of the prosecutrix becomes highly doubtful for the reasons already stated above. 12. This Court is of the opinion that at least a benefit of doubt was liable to be given to the accused / appellant as the prosecution has not fully established the charges against the accused / appellant, and its case has not been established beyond reasonable doubt. I find that the learned trial court has erred in convicting and sentencing the appellant under Section 376 I.P.C. 13. Hence, the appeal is allowed and the conviction and sentence against the appellant awarded by the trial court is hereby set aside. The appellant is acquitted from the charge leveled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 14. Let the record be sent back to the court concerned.