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2013 DIGILAW 757 (UTT)

ANIL SINGH v. STATE OF UTTARAKHAND

2013-11-27

SUDHANSHU DHULIA

body2013
JUDGMENT Hon’ble Sudhanshu Dhulia, J.(Oral) 1. This criminal appeal filed by the accused/appellant arises out of a judgment and order dated 01.12.2010 passed by the learned Sessions Judge, Chamoli in Sessions Trial No. 14 of 2009 whereby the accused/appellant has been convicted under Section 376 of I.P.C. and sentenced for five years of rigorous imprisonment. 2. The appellant before this Court, at the time of the alleged incident i.e. 14.08.2008 was about 25 years of age and the victim i.e. prosecutrix was 65 years of age. As per the First Information Report dated 15.08.2008, which was lodged by the prosecutrix – Smt. Ganeshi Devi before the Sub-Divisional Magistrate, Karanprayag, District Chamoli against the accused – Anil Singh, it is stated that on 14.08.2008, when the prosecutrix was coming back from “Nauti” Village, she met the accused- Anil Singh S/o Prem Singh, who belong to the same village, offered her lift in his car as they were going to the same village. When they reached Village “Koli” the accused parked his car inside his garage and raped her in the car itself. After the incident, she was not in a proper state of mind or body, yet she somehow reached her house and thereafter fell unconscious. There was no one in the house to take care of her. Next morning i.e. 15.08.2010, when other villagers came to know about the incident, they informed her daughter over telephone about the incident and the condition of her mother. Her daughter was staying in another village. She came to the village along with the Ambulance No. 108 (medical aid vehicle) and thereafter she took the prosecutrix to the Government Hospital where she is presently undergoing treatment. When she regained her health, she narrated the entire incident to her relatives. 3. On the basis of the First Information Report the investigation of the case commenced. The accused was arrested on 16.08.2008. Thereafter, the Sub-Divisional Magistrate ordered the Nayab Tehsildar, Karanprayag to investigate the matter and the Nayab Tehsildar after completing the investigation filed the chargesheet under Section 376 of I.P.C. against the accused/appellant. At this juncture, it is necessary to state that the matter pertains to hill areas in Uttarakhand where the revenue officials have been authorized police powers. 4. Thereafter, the Sub-Divisional Magistrate ordered the Nayab Tehsildar, Karanprayag to investigate the matter and the Nayab Tehsildar after completing the investigation filed the chargesheet under Section 376 of I.P.C. against the accused/appellant. At this juncture, it is necessary to state that the matter pertains to hill areas in Uttarakhand where the revenue officials have been authorized police powers. 4. After submission of chargesheet, learned Magistrate committed the case to the Court of Session for trial and the learned Sessions Judge, after hearing the parties, framed the charge against the accused under Section 376 of I.P.C. 5. The prosecutrix was first medically examined by Dr. Nirbhay Kumar, Medical Officer, Community Health Centre, Karanprayag, Chamoli on 15.08.2008 at about 01:20 p.m. He noticed an injury which is a wound on the right temporal area just near the right eyebrow area – 3 cm x 1cm area and Abrasion/laceration scab present over the wound. According to the opinion of the doctor this wound must be about six or seven days old. Therefore, this particular injury has nothing to do with the alleged offence. In fact the prosecutrix, at the relevant date of incident, was coming from the hospital after getting her treatment of this injury. Therefore, this injury is not related to the incident. All the same, Dr. Nirbhay Kumar (P.W.3) also noticed that the victim complained of bleeding from her private part, and this was also noticed by him and hence he referred her to District Hospital Gopeshwar for evaluation and opinion of a Gynecologist. The victim went for examination on the next day to the Government Hospital Gopeshwar. Dr. Meena Raturi (P.W.4), Medical Officer, Government Hospital Gopeshwar, Chamoli examined the prosecutrix on 17.08.2008 at 05:00 p.m. Dr. Meena Raturi does not notice any external injury on the prosecutrix. It also suggests that the bleeding on the private part and that she is a woman post her menopause. It further states that bleeding started after the offence of rape and the Doctor also advised her to conduct ultra-sound in order to detect the actual cause of bleeding. On further investigation two slide of vaginal semen prepared for detection of spermatozoa. Doctor further says that nothing can be said with certainty as the victim has been subjected to rape or not. The medical report is a part of the record, which states negative spermatozoa. On further investigation two slide of vaginal semen prepared for detection of spermatozoa. Doctor further says that nothing can be said with certainty as the victim has been subjected to rape or not. The medical report is a part of the record, which states negative spermatozoa. Further it does not say anything regarding presence of semen. 6. The prosecution in order to establish its case examined as many as five witnesses, namely, Sujan Singh (P.W.1), Smt. Ganeshi Devi (P.W.2), Dr. Nirbhay Kumar (P.W.3), Dr. Meena Raturi (P.W.4) and Govind Das (P.W.5). 7. P.W.1 – Sujan Singh, who claims to be the elder brother of the victim, came to know about the incident from his niece i.e. the daughter of the prosecutrix. Immediately thereafter he rushed to the Government Hospital, Karanprayag. There his sister, who has been subjected to rape, narrated the entire incident to him. This witness has further in his examination-in-chief said that he went to Sub-Divisional Magistrate from where he located the house of the accused and went to the house of the accused, who admitted his crime and gave an apology in writing. However, this apology was not accepted by the Sub Divisional Magistrate, but since it was a written apology, P.W.-1 kept that written paper in his pocket and submit the same at the time of his testimony with the permission of the court at the time of trial, which is also a part of the record. He was put to a cross examination, where he could not name the husband of the prosecutrix etc. However, no great weightage can be given of this fact to the appellant as this witness (P.W.1) may not be the real brother of the prosecutrix and may just be calling her his “sister” in the manner of speaking prevalent in the village. But all this does not demolish the credibility of this witness. 8. The prosecutrix herself was examined as P.W.2 where she has narrated the incident as she has stated in the First Information Report. She took a lift from the accused on her way back from the hospital as he was of the same village, but he had different intentions as after parking his car in the garage, he closed the shutter of the garage and raped her against her wish and in spite of resistance, inside the car. 9. Dr. She took a lift from the accused on her way back from the hospital as he was of the same village, but he had different intentions as after parking his car in the garage, he closed the shutter of the garage and raped her against her wish and in spite of resistance, inside the car. 9. Dr. Nirbhay Kumar (P.W.3) had medically examined the prosecutrix on 15.08.2008 way said that the victim complained of bleeding, from her private parts. The doctor further opined in its report that the victim sustained injuries over right temporal area just near the right eye brow area – 3 cm x 1 cm area. Abrasion/laceration scab present over the wound the said injury was sustained about six or seven days prior. At this stage it is not disputed that she went to Nauty village for treatment of the above injury, therefore, this injury is not related to the incident. As the victim complained of bleeding from her vagina, the doctor (P.W.3) referred her to District Hospital Gopeshwar for examination and opinion of Gynecologist. 10. Dr. Meena Raturi (P.W.4) conducted the medical examination of the victim and found no external injury, but bleeding was present in Vagina. Two slide of vaginal smear prepared for detection of spermatozoa and sent to pathology. 11. Govind Das (P.W.5) is the Tehsildar is a formal party. 12. Learned counsel for the appellant at this stage argued that when the prosecutrix was examined for the first time, she did not disclose that she was raped. It is true that in the medical opinion of Dr. Nirbhay Kumar (P.W.3) as well as in the testimony of the victim it has clearly come on record that the victim did not disclose about the incident on 15.08.2008 to P.W.3. However, this matter was reported to the second doctor i.e. Dr. Meena Raturi – Gynecologist on 17.08.2008. She further states that the bleeding from her private part actually started after she was raped. Therefore, the link of the bleeding from the private part of the victim has been linked to the assault and rape on the victim. This does not seem to be in doubt. 13. Meena Raturi – Gynecologist on 17.08.2008. She further states that the bleeding from her private part actually started after she was raped. Therefore, the link of the bleeding from the private part of the victim has been linked to the assault and rape on the victim. This does not seem to be in doubt. 13. Learned Senior Counsel for the appellant, Sri R.P. Nautiyal on the other hand has argued that this could not be established as the doctor had clearly directed that the reason can only be assigned after the ultra sound tests are conducted on the body of the victim and the real reasons for bleeding detected it cannot be said that “bleeding” from her vagina was due to rape only. It could be an internal injury, which may have nothing to do with rape! 14. It is true that the ultra-sound was not done on the body of the victim as there is no report which suggests that ultra-sound was conducted on the body of the victim, but nevertheless, it is also proved from the testimony of the victim that the bleeding started after she was subjected to rape. This fact has gets strength from the opinion of the doctor, which says that the bleeding may be caused due to rape committed on her. Moreover, this doctor had categorically said that the patient (i.e. the prosecutrix) had told her that the “bleeding” started after she was raped. 7 15. It is a strange case before the Court where the prosecutrix, at the relevant point of time, was 65 years old woman has been subjected to a rape by a 25 years old man. Nevertheless the testimony of the prosecutrix (P.W.2) and the medical evidence which are available on records as well as considering the fact that the rape has happened in the remote hill area of State/Uttarakhand where modern forensic evidence could not be possibly procured, still on the basis of the available evidence itself, it is a clear case of rape committed on the prosecutrix. 16. The argument of the learned counsel for the appellant that the testimony of the prosecutrix has not been corroborated with the medical evidence is not correct. 16. The argument of the learned counsel for the appellant that the testimony of the prosecutrix has not been corroborated with the medical evidence is not correct. It is true that ultra sound tests were not conducted on the body of the victim, yet the doctor’s statement given at the time of medical examination, which has been recorded in the medical evidence as well as testimony of P.W.4 – Gynecologist, who examined her, clearly established that the bleeding started from the private part of the victim after she was subjected to rape by the accused. The conviction of rape, therefore, must be upheld. 17. On sentence the learned Senior Advocate for the appellant submits that the trial court itself, after considering the fact that the accused is a young man of 25 years of age and has a daughter of 1½ years old and his father is 75 years of age, who is a heart patient, reduced the minimum imprisonment of seven years to five years. He further submits that the accused is a young man and there is no one to look after his daughter and aged father. 18. From the perusal of the impugned judgment and order, it appears that the learned trial court had also taken notice of this fact and had, therefore, reduced the sentence to five years. On these mitigating circumstances I further reduce the sentence by one year. Consequently, the appellant shall now undergo rigorous imprisonment of four years. The period of days already spent by the appellant in jail shall be adjusted from these four years. 19. Subject to the above reduction in sentence, the appeal is dismissed. The appellant is on bail. His bail bonds are cancelled. He shall surrender before the court concerned within a period of three months from today to undergo remaining part of sentence, as above. 20. Let a copy of this judgment, alongwith the records of the court below, be sent back to the trial court to make appellant to serve out the sentence awarded to him.