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2014 DIGILAW 117 (UTT)

GURPREET SINGH CHAUHAN v. STATE OF UTTARAKHAND

2014-03-25

SERVESH KUMAR GUPTA

body2014
JUDGMENT Hon’ble Servesh Kumar Gupta, J. Appellant Gurpreet Singh Chauhan has preferred this appeal through jail authorities against his conviction and sentence awarded by the Sessions Judge, Udham Singh Nagar on 9/16.4.2013 in Sessions Trial No. 148/2012. The said trial pertains to Police Station Gadapur, wherein the appellant was tried for the offences of 363, 366, 376 IPC and he was convicted for the said offences. He has been sentenced appropriately. 2. Ms. Saroj was enticed away by the appellant from the custody of her lawful guardians (parents) and she was induced to compel her marriage with the accused appellant. In the intervening night of 17/18.4.2012 when other members of the victim’s house were away from the home in order to attend the Devi Jagran in the close vicinity, the accused approached Ms. Saroj and she left her house with him. She was carried at different places and ultimately the accused brought her to Sultanpur Patti within the territorial jurisdiction of the Police Station Bajpur. He hired a room in the house of Devendra Kumar (PW3) to keep Ms. Saroj with him there. The accused by vocation is a driver. So, he used to keep the victim confined in the said room for the whole day while away from the house in order to attend his duties and with the warning to the victim that if she disclosed the real facts and his detention without her wishes, it may be fatal to her. 3. Father of the victim Rajendra Singh lodged the missing report on 21.4.2012. The police came into motion and recovered the girl from the rented house, as aforementioned, on 24.4.2012. She was taken for her medical examination. The doctor found her hymen torn, but desisted from expressing any opinion regarding the rape with her. Her age could be assessed by the doctor on the basis of ossification test between 15 to 17 years. 4. The statement of the girl was recorded under Section 164 CrPC by the Magistrate on 24.4.2012, the day of her recovery, and she narrated her age to be 16 years. Her statement under Section 164 CrPC, which she has ratified in her deposition before the Court, reveals that appellant was striving to court her and in that process, he promised to marry her. Her statement under Section 164 CrPC, which she has ratified in her deposition before the Court, reveals that appellant was striving to court her and in that process, he promised to marry her. She was apprehending the resistance from her parents, but the accused strived to make her fearless in this regard and thus succeeded to entice away in order to marry. He kept Ms. Saroj continuously for almost a week in the rented house of PW3, where she was subjected to sexual intercourse everyday. Even the appellant in the grounds of appeal has mentioned that he married Ms. Saroj and was keeping her as his legally wedded wife. 5. The averments of the appellant as have been stated in the grounds of appeal are of no avail in view of the age of the victim. As per the School Leaving Certificate Ex. Ka-7, her date of birth is 5.5.1998. This way, she was even bit little than 14 years of age. So, even if she left her home on the persuasion of the accused appellant, the same cannot exonerate the appellant from the offence of Section 363, 366 and 376 IPC. Ossification test to determine the age of a person is not conclusive. This has also been held by the Himachal Pradesh High Court in case of Prem Chand v. State of H.P., 2000 Cr.L.J. 951. This Court also concurs with the same view. 6. Moreover, the doctor has nowhere stated that the age of Ms. Saroj was decisively more than 16 years. In case of Vishnu v. State of Maharastra, 2006 (1) SCJ 299, Hon’ble Apex Court has held that regarding the age of prosecutrix in a case under Section 376 IPC, the evidence of the parents of the prosecutrix will prevail over medical opinion. Hon’ble Apex Court, in State of U.P. v. Chhote Lal, (2011) 2 SCC 550 , has held that there is no such rule, much less an absolute one, that two years have to be added to the age determined by a doctor. 7. Even the girl has deposed her age to be 15 years at the time of her deposition on 26.11.2012 and such disclosure by her regarding the age matches with the age as has been adverted in the School Leaving Certificate. 7. Even the girl has deposed her age to be 15 years at the time of her deposition on 26.11.2012 and such disclosure by her regarding the age matches with the age as has been adverted in the School Leaving Certificate. PW4, the doctor who has examined the victim on 24.4.2012 has categorically stated that the commission of the rape with the victim after 18.4.2012 was possible. 8. So, in view of what have been stated above, I do not find any merit in this appeal. It is liable to be dismissed. 9. Appeal is dismissed on merits. But, looking to the circumstances that accused is a young man of about 25 years, he is a driver by vocation and a poor person, his sentenced of 10 years rigorous imprisonment is reduced to that of 7 seven years rigorous imprisonment for the offence of Section 376 IPC. Rest of the sentences, as awarded to him for the offences of Section 363 and 366 are left intact. All the sentences shall run concurrently. The period of detention, he has been in jail, will be adjusted in the total period of sentence awarded to him. Let the appellant be made aware about the fate of the appeal through proper channel. Thus, the appeal is partly allowed only on the question of sentence. 10. Let a copy of this judgment and order be sent to the trial court to ensure its compliance. Lower court record be also sent back.