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Uttarakhand High Court · body

2013 DIGILAW 66 (UTT)

MITTHU LAL v. STATE OF UTTARANCHAL

2013-02-27

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 20th December 2003, passed by learned Sessions Judge/Special Judge Pithoragarh, in Sessions Trial No. 51 of 1999 State Vs. Mitthu Lal, whereby the accused-appellant Mitthu Lal has been convicted under Section 376/511 of the Indian Penal Code (hereinafter referred to as I.P.C.) and has been sentenced to undergo five years’ rigorous imprisonment and a fine of Rs. 2,000/- for the offence under Section 376/511 of the I.P.C. In default of payment of fine, the accused-appellant has been ordered to further undergo six months’ R.I. 2. Heard learned Amicus Curiae for the appellants and learned Assistant G.A. for the State and have perused the record. 3. The prosecution story as unfolded from the record is that on 28-9-1988, complainant Mundelal (PW 1) lodged a written report (Ext. Ka-1) with the Police Station Dharchula alleging therein that on 28-9-1988 in the evening at about 6-45 p.m., his daughter came out weeping from the room of accused Mitthu Lal and when she was taken to the room of the complainant, he found that her underwear was wet with some liquid element and he suspected that rape had been committed with his daughter. On the basis of this written report a Check F.I.R. (Ext.Ka-2) was prepared by the Inspector Incharge of P.S.Dharchula and the case was registered against the accused Mitthu Lal as Crime No. 44/88 under Section 376 of the I.P.C. at 10-15 p.m. on the same day and an entry to this effect was made in the General Diary as report no. 21 at 2215 hours (Ext. Ka-3). The investigation of the case was taken up by S.I.Shiv Singh Gusain of P.S. Dharchula. 4. Km. Reeta Devi D/O Mundelal (victim-PW2) was taken to Female Hospital Pithoragarh for her medical examination on 29-9-1988 where the prosecutrix was examined by Dr. Smt. C.Ojha, Medical Officer concerned. The doctor on examination of the prosecutrix found axillary hair not developed. Breast not developed and no mark of violence was seen on the body. On examination of private parts of the prosecutrix the doctor found pubic hair not developed. Labia Majora and minora not developed. Hymen and perineum of the girl were found intact. Smt. C.Ojha, Medical Officer concerned. The doctor on examination of the prosecutrix found axillary hair not developed. Breast not developed and no mark of violence was seen on the body. On examination of private parts of the prosecutrix the doctor found pubic hair not developed. Labia Majora and minora not developed. Hymen and perineum of the girl were found intact. There was no mark of injury and laceration on her external genitals except some slight swelling and congestion, but no tenderness was present. 5. The doctor prepared two vaginal smear slides and sent them to B.D.Pandey Hospital for clinical examination. On clinical examination, no spermatozoa were seen in the vaginal smear of the girl. 6. The prosecutrix was also sent for her X-ray of wrist and elbow for confirmation of age to B.D.Pandey Hospital on the same day. X-ray was conducted and examination of X-ray report on 15-10-1988, the doctor found epiphysis and only three carpal bones of wrist had appeared. The doctor had concluded that the age of the girl was between 3-5 years. The doctor has opined that attempt of sexual assault had been made and that there was no seminal stains on her private parts. The medical examination report prepared by the doctor is on record of the trial Court as Ext. Ka-4. 7. The statements of the witnesses under Section 161 Cr.P.C. were recorded by the Investigating Officer (I.O.) and after completing necessary formalities, the I.O. found prima facie case under Section 376 I.P.C. and accordingly submitted a charge-sheet (Ext. Ka-5) against the accused-appellant to the Magistrate concerned. 8. The Judicial Magistrate Didihat (Pithoragarh) on receipt of the charge-sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the case to the Court of Session for trial by his order dated 21-10-1999. 9. A charge under Section 376 of the I.P.C. was framed against the accused by the learned Sessions Judge, Pithoragarh on 6-11-1999, to which the accused pleaded not guilty and claimed to be tried. 10. The prosecution in order to bring home the guilt to the accused examined as many as five witnesses in the trial, namely, P.W. 1 Mundelal, who is the complainant and father of the prosecutrix, P.W.2, Km. Reeta, the victim, Head Const. Sheesh Ram,P.W.3, Dr. Mamta Quarbi, P.W.4, S.I. Shiv Singh Gusain, P.W.5, who is the I.O. of the case. 11. The prosecution in order to bring home the guilt to the accused examined as many as five witnesses in the trial, namely, P.W. 1 Mundelal, who is the complainant and father of the prosecutrix, P.W.2, Km. Reeta, the victim, Head Const. Sheesh Ram,P.W.3, Dr. Mamta Quarbi, P.W.4, S.I. Shiv Singh Gusain, P.W.5, who is the I.O. of the case. 11. The prosecution filed documentary evidence marked as Ext. Ka-1 to Ext. Ka-5, referred to above. 12. All the oral and documentary evidence was put to the accused, under Section 313 Cr.P.C. In his statement recorded under Section 313 Cr.P.C., he admitted that the complainant Munde Lal and the accused used to live in the same colony. The accused denied to have committed rape on Km. Reeta, P.W.2. The accused showed his ignorance about the medical examination of the prosecutrix. The accused deposed that witnesses falsely gave evidence against him. In the last the accused has stated that the father of Km. Reeta (PW2) is his nephew and there is old enmity between them on account of land dispute. He further stated that wife of Mundelal used to quarrel with him and the case has been filed in collusion with police by the complainant against him. However, no evidence was led by the accused-appellant in his defence. 13. The learned trial Court after hearing both the parties and after thrashing the evidence led in the case, found the accused guilty of the charge under Section 376/511 of the I.P.C. and convicted him on that count. After hearing the accused on the quantum of punishment, the learned trial Judge by his order dated 20-12-2003sentenced him for a term of five years’ R.I. and fine of Rs. 2,000/-. In default of payment of fine, the accused was ordered to further undergo six months’ R.I. Aggrieved by the order of conviction and sentence passed by the trial Court, the accused Mitthu Lal has preferred the present appeal. 14. I have heard learned Amicus Curiae appearing on behalf of the accused-appellant as well as learned Assistant Government Advocate for the State and perused the lower court record. 15. Learned Amicus Curaie appearing on behalf of the accused-appellant has contended that the accused-appellant was falsely implicated in the case due to enmity between the accused and complainant side owing to land dispute. 15. Learned Amicus Curaie appearing on behalf of the accused-appellant has contended that the accused-appellant was falsely implicated in the case due to enmity between the accused and complainant side owing to land dispute. Learned Amicus Curaie further submitted that no rape or sexual assault was committed by the accused on the prosecutrix and there is no medical evidence to corroborate the charge on this count. The medical evidence does not support the prosecution story at all and that there was no mark of injury on the private part of the girl at the time of her medical examination. 16. The statement of the complainant before the trial Court was recorded on 11-5-2000. In his testimony, the complainant Munde Lal PW 1 has stated that prosecutrix Reeta Kumari is his daughter and she is about 20 years of age. Accused Mitthu Lal and he both used to work in the same concern N.H.P.C. at Chhirkila and both of them used to live in the same colony. He further stated that on 28-9-1988 in the evening at about 5 p.m. he had gone to the Bazar to bring some household goods. On return, he asked about the children from his wife. Meanwhile he heard the sound of weeping of his daughter from the room of the accused. He wanted to open the door, which was bolted from inside. He angrily asked the accused to open the door. Then after some time the door was opened by the accused and he found his daughter and the accused inside the room. He noticed that the underwear was wet and his daughter was having some stains like seminal fluid near her private parts. P.W.1 also showed the condition of the girl to his wife who interrogated the accused as to what was done by him with the girl. This witness further stated that he himself, Ram Kishan Foreman and the Engineer apprehended the accused and brought him to the Primary Health Centre along with the girl and from there, he went to lodge report at the police station. He also stated that the next day, the medical examination of his daughter was conducted at Pithoragarh hospital. He has proved the written report lodged by him as Ext. Ka-1. He also stated that the next day, the medical examination of his daughter was conducted at Pithoragarh hospital. He has proved the written report lodged by him as Ext. Ka-1. This witness was cross-examined at length from the side of the accused but nothing could be elicited to hold that this witness was not speaking the truth of the incident. 17. P.W. 2 Reeta Devi, the victim, whose age is mentioned 17 years, has deposed in the Court that on the date of incident, the accused took her to his room after closing her mouth and bolted the door inside. He put off his clothes. He also put off her underwear and committed sexual assault on her. She started weeping and shouting. She also narrated the entire incident how the door was got open by the accused on the warning of her father. In her cross-examination, she maintained that rape was committed on her by the accused. P.W.2 in her cross-examination has clearly stated that there is no enmity between them and the accused. She denied the defence suggestion that blood had come from her private part at the time of incident. She further admitted that the penis of the accused was inserted inside her private part. She also stated that the accused remained lying over her for about 2-3 minutes. 18. From a close scrutiny of the evidence of the P.W.2 it is evident that the prosecutrix was bold enough to narrate the entire incident of sexual assault by the accused having been committed with her in the Court when she was about 17 years of age. From the testimony of the prosecutrix coupled with the statement of her father P.W.1 Mundelal, it is evident that prosecution has succeeded in bringing home the guilt against the accused for the offence of sexual assault. The incident had occurred on 28-9-1988 and the statements of material witnesses were recorded in the trial Court on 11-5-2000 after about 12 years of the alleged incident of sexual assault. Had there been no such sexual assault upon the prosecutrix, the father and the girl should not have come forward to speak against the accused in the Court about the incident of rape without caring for the career of the girl and the repute of their family in the society. 19. Had there been no such sexual assault upon the prosecutrix, the father and the girl should not have come forward to speak against the accused in the Court about the incident of rape without caring for the career of the girl and the repute of their family in the society. 19. P.W.3, H.C. Sheesh Ram was constable clerk at the police station when the written report was lodged by the complainant. This witness has proved the Check FIR as Ext. Ka-2. He is a formal witness. 20. P.W.4, Dr. Mamta Quarbi is the medical officer who examined the girl when she was brought for medical examination to the hospital on 29-9-1988. PW 4 has proved the medical report prepared by her as Ext. Ka-4. She has mentioned that the age of the prosecutrix was between 3-5 years at the relevant time. P.W.4 has stated that attempt to commit rape was made upon the prosecutrix. 21. P.W.5, S.I. Shiv Singh Gusain is the I.O. of the case. He has proved the charge-sheet Ext. Ka-5. From his evidence, it is borne out that investigation was conducted in usual manner and the investigation of the case was fair. 22. It is pertinent to mention here that in this case the police submitted final report in the case, but the investigation was restarted on the protest petition of the complainant. 23. So far as the contention of the learned counsel for the accused (Amicus Curiae) that the case against the accused is false and he has been implicated due to enmity is concerned, I am not convinced with this argument for the simple reason that merely filing of final report to the Magistrate is not in itself a concrete proof that no offence was committed by the accused. It appears that since the complainant PW 1 lodged the F.I.R. against the accused-appellant, before acceptance of final report, the complainant must have been called by the Magistrate and on the protest by the complainant, the investigation was against conducted in the case. It is not disputed that in the earlier investigation, the Investigating Officer had not recorded the statement of the prosecutrix, therefore, there was no justification to close the matter by accepting the final report. 24. I have perused the final report prepared by the earlier I.O., which is paper no 3 A/14 on the record of trial Court. It is not disputed that in the earlier investigation, the Investigating Officer had not recorded the statement of the prosecutrix, therefore, there was no justification to close the matter by accepting the final report. 24. I have perused the final report prepared by the earlier I.O., which is paper no 3 A/14 on the record of trial Court. In this report, the I.O. had mentioned that in the medical report there is no mention of rape with the girl and that it is a case of enmity between the parties. It does not stand to reason that without examining the girl and without examining the doctor who medically examined the prosecutrix, the Investigation Officer had concluded that there was no case of rape or sexual assault against the accused. The final report appears to have been rightly rejected by the Magistrate concerned. 25. There is still one more strong circumstance against the accused-appellant in this case. Along with the final report, which was earlier submitted in the case, the I.O. had annexed medico legal report of the accused, which is paper no. 30/11 on the record of court below. It appears that the accused was also medically examined in connection with Crime No. 44/88 under Section 376 I.P.C. In that medio legal report, the doctor has opined that no definite opinion could be given and pathological report was expected. It appears that the I.O. instead of getting further investigation done, filed this medical report to the court along with final report, while the injury/medical report of the prosecutrix was not produced before the learned Magistrate. Therefore, no benefit can be given to the accused-appellant in the case at hand. In addition to above, it may be mentioned that had thereby been any land dispute between the complainant and the accused, as alleged by the accused-appellant, the accused must have filed some documentary evidence in his defence to show that the case against him was the outcome of that enmity, but it has not been done in defence. The contention as well as the arguments raised by the learned amicus curaie are not tenable in the eye of law. 26. The contention as well as the arguments raised by the learned amicus curaie are not tenable in the eye of law. 26. From a perusal of the judgment and order of conviction and sentence by the learned Sessions Judge Pithoragarh, it is clear that the entire evidence led by the prosecution has been fully discussed and the learned Sessions Judge has rightly come to the conclusion that the charge against the accused for the offence of sexual assault, punishable under Section 511 read with Section 376 of the I.P.C. is fully made out beyond reasonable doubt and the accused-appellant has rightly been convicted and sentenced under the said count by the learned trial Judge by his judgment and order dated 20-12-2003. 27. Having considered the entire prosecution evidence on record and the submissions made by the learned Amicus Curiae in this appeal and for the reasons and discussion above, this Court is of the considered view that the appeal preferred by the accused-appellant against his conviction and sentence under Section 376/511 of the I.P.C. has no force and the judgment and order of conviction appealed against does not warrant any interference by this Court. Therefore, the appeal of the accused-appellant is liable to be dismissed outright. 28. The appeal preferred by the accused-appellant against his conviction and sentence is dismissed. The impugned judgment and order passed by the learned Sessions Judge, Pithoragarh is maintained. 29. 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.