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2014 DIGILAW 172 (UTT)

Rihan v. State of Uttarakhand

2014-04-07

SERVESH KUMAR GUPTA

body2014
JUDGMENT SERVESH KUMAR GUPTA, J. 1. The challenge herein is to the judgment and order of conviction dated 28.9.2012 rendered by the Sessions Judge, Dehradun convicting the appellant Rehan for the offence of Sections 363, 366 and 376, IPC as well as for the offence of Section 67 of the Information Technology Act, 2000 nay Section 4/6 of the Indecent Representation of Women (Prohibition) Act, 1986. Anyhow, the learned Judge could not find him guilty for the offence of Sections 504, 506 and 509, IPC, wherefor he was also charged. Three Sessions Trials 156/2010, 21/2011 and 22/2011 entailing the inter-knitted facts were clustered together for the purpose of trial making one of them as leading. The evidence was recorded in the leading case. So, the Trial Judge adjudicated all the three trials by rendering the single judgment, which is impugned in the appeal preferred by the convict. 2. On the other hand, State has also preferred the cross-appeal G.A. No. 5/2013 challenging the judgment and order of acquittal of the accused appellant from the offence of Sections 504, 506 & 509, IPC with the prayer to convict the accused appellant for these offences too. The instant judgment will deal with both the appeals. 3. Having heard learned Sr. Counsel of the accused-appellant and the State at length, the Court feels that it is the sad victimization of a 12th standard studying girl who was still in her teens. The accused Rihan residing in the close vicinity of the victim commenced to court her while she used to be on her way either to school, tuition, market or to the shop of her father, every time coming on his motorbike, chasing and persuading her with the request in unwanted manner. So she was quite perturbed on account of this behaviour, gestures and overtures of the accused. The unfortunate day of 18.11.2009 came soon when the accused, having nurtured the intention to use and exploit her sexually, convinced her that if she spare some moments to talk to him, she will never be chased thenceforth. This assurance created a hope in the heart and mind of the victim and, in order to get rid of him for all the times to come, she put her credence on the said assurance of the accused. This assurance created a hope in the heart and mind of the victim and, in order to get rid of him for all the times to come, she put her credence on the said assurance of the accused. Thus, on this pretext he could succeed to make her pillion rider and further to take her to the hotel Shivam Residency at Doon where he had already hired a room No. 105 with pre-arranged cold drink and pastry. In order to save himself from creating any evidence, he checked in the room of hotel in such a manner as to keep him away from being snapped in the company of the victim by the CCTV Camera. In the hotel, he offered a pastry and some drink (already arranged) having stupefying and unwholesome substance. At the same time, he did not consume any of the eatables himself. The girl asked the reason to carry her in the room, but accused assured her saying need not to be perturbed as she will be free to go after a little while. The innocent girl at his insistence consumed the same and became unconscious. He overpowered her forcing to put off her clothes and then she was sexually abused like anything and, at the same time, he made a video clipping of the sexual intercourse, she was subjected to at his hands. She could be permitted to leave for her house only after the sexual intercourse. Since she was under the threat not to disclose the incident to anyone, or to face the consequences, so this threat coupled with inherent bashfulness kept her in such a position for long time that she could not muster the courage to disclose the incident to anyone. 4. Since her video clipping of the entire sexual intercourse and her nude pictures had been made within her knowledge, so she was bound to dance at the tunes of this accused appellant. She was again enticed away on 10.12.2009 at about 2.45 p.m. while on her way to take tuition from her teacher. Now, this time she was taken to a hotel in Haridwar, where she was kept for overnight and was sexually abused like anything. When her father got the information that his daughter Ms. She was again enticed away on 10.12.2009 at about 2.45 p.m. while on her way to take tuition from her teacher. Now, this time she was taken to a hotel in Haridwar, where she was kept for overnight and was sexually abused like anything. When her father got the information that his daughter Ms. Shikha Uniyal has been kidnapped forcibly as a pillion on the motorcycle by the accused Rihan, he lodged the FIR in the Nehru Colony Police Station on 10.12.2009 itself. The father got this information through PW3 Dhirendra alias Dhiraj Kothiyal, who was watching the scene when she was almost being forced to be a pillion on the motorcycle, obviously, on the strength of electronic CD of her obscene pictures. Police came into motion and linking the clues, the accused was arrested with the victim at Haridwar railway station on 11.12.2009. Recovery memo is Ex. Ka-36, which bears the signature of the accused as well as the victim. The undervest and underwear of the accused and undergarments of the victim were taken into possession. The same were sent for the chemical examination to the Forensic Science Laboratory. 5. The report of the laboratory shows that semen was detected on the pubic hair and underwear of the accused. The semen was also found on the underwear of the victim. So, it indicates that she was subjected to those sexual intercourses by the accused all through her detention in the hotel at Haridwar since 10.12.2009 to 11.12.2009. The father of the victim were waiting for the end of the investigation on the basis of the FIR lodged by her father on 10.12.2009, but meanwhile they got the information from sundry sources that accused had started to circulate that obscene pictures of the victim by sending the MMS and using other electronic means. So, the unfortunate father, lodged another information on 15.2.2010, which is Ex. Ka-9 narrating that such videos of his daughter are being circulated in order to blackmail him and his daughter. When Mr. Shashikant Uniyal and the victim were still waiting to get justice at the hands of the police, yet another third incident was done by the accused. 6. So, the unfortunate father, lodged another information on 15.2.2010, which is Ex. Ka-9 narrating that such videos of his daughter are being circulated in order to blackmail him and his daughter. When Mr. Shashikant Uniyal and the victim were still waiting to get justice at the hands of the police, yet another third incident was done by the accused. 6. On 4.10.2010 at about 3 p.m., when she was going along with her mother Smt. Rekha Devi to the shop of her father located in the nearby market Dharmpur, the accused came from behind and threatened her as well as her mother abusing and calling her as prostitute. She was threatened to get lifted again by the scoundrels of Bijnor and further to kill her and her father if they press the legal action against him either by the police or in the Court. This threatening extended by the accused to Km. Shikha and her mother made her father stunned and terrorised. So, he could not muster the courage to inform the police immediately as has been explained by PW1 Shashikant Uniyal. Somehow, he could gather the courage to inform the police regarding the incident of 21.10.2010. So, Ms. Shikha lodged this FIR on 21.10.2010. 7. The police culminated the investigation into submission of charge-sheet on 13.12.2010 for all the offences as have been indicated above. The charges were levelled accordingly and the accused was put to trial. 8. The first aspect which has been agitated by the learned Sr. Counsel for the accused is that victim Ms. Shikha was above than 18 years of age as has been disclosed by the doctor on the basis of her ossification test. The Court is not inclined to accept this argument for the reason that, as disclosed in the school certificate (a mark-sheet issued by the CBSE), her date of birth is 10.2.1993. This way on the first unfortunate day on 18.11.2009, she was below 17 years of age. The doctor himself has deposed that the fusion of all the relevant bones depends upon a number of factors including the climatic condition, the healthy food and the living standard of a person. So, just on the basis that her all concerned bones have been fused, no conclusive opinion can be derived on the basis of ossification test. The doctor himself has deposed that the fusion of all the relevant bones depends upon a number of factors including the climatic condition, the healthy food and the living standard of a person. So, just on the basis that her all concerned bones have been fused, no conclusive opinion can be derived on the basis of ossification test. This is simply an opinion which is not binding upon this Court even and can hardly be decisive. In this regard, precedent in case of Vishnu vs. State of Maharastra, 2006 (1) SCJ 299 : AIR 2006 SC 508 , can be looked into, wherein the 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. 9. The opinion of the doctor regarding the age of the victim on the basis of ossification test can never be conclusive. It is almost an estimation which can vary on either side and that variation is to be looked into taking into account the date of birth as has been mentioned in her school certificate. This way, there can be no other opinion except to infer that she was below 17 years and, while being in her teens, the accused pursuing to the extent of compelling her to be a pillion was nothing than a kidnapping as envisaged under Section 361 of the Indian Penal Code. Even if she was going on road, she was under the lawful guardianship of her parents. So, she could not have been taken away either to the hotel room at Dehradun or at Haridwar. The doctor has proved that her hymen was torn. 10. The learned Sr. Counsel has strived to show that she was very often enjoying the sex with the accused. This argument is wholly unsubstantial and not acceptable and it is rejected for the reason that the medical report of the victim makes it amply clear that her vagina could have admitted two fingers very tightly. 11. Learned Sr. Counsel has argued that the memory card could not have been fitted in the internal settings of the mobile recovered at the instance of the accused. This argument is also not acceptable for the reason that there is no conclusive proof that the accused used only the same mobile phone. 11. Learned Sr. Counsel has argued that the memory card could not have been fitted in the internal settings of the mobile recovered at the instance of the accused. This argument is also not acceptable for the reason that there is no conclusive proof that the accused used only the same mobile phone. There is every occasion for him to replace it by another in order to destroy the evidence against him. While facing the question under Section 313, Cr. P.C. even the accused has not denied the recovery memo as it bears his signatures. 12. Learned Sr. Counsel for the appellant has also argued that no statement of the victim under Section 164, Cr. P.C. was recorded. This argument is also quite baseless for the reason that her father has clarified in so many orders that he, his daughter and his entire family were so terrified and horrified by the consistent and persistent threats extended by the accused to see them in future and even to kill them if they press the recourse of law against him and after her nude pictures were made public by way of using the electronic media, then she was so perturbed that she could not muster the courage to give statement under Section 164, Cr. P.C. This is quite a natural conduct of a teenager still pursuing her studies in the 12th standard. 13. The Ld. Sr. Counsel on behalf of the appellant has drawn the attention of the Court to the observation of trial Court Judge who could watch the film recorded in C.D. while the accused was making physical relations with the victim. It has been observed that victim was co-operating the accused permitting him to establish such relations. Although this Court could not watch such picture enclosed in the C.D. (as the same is not available on the record) but even so, it can be visualized that intoxicant in such eatable was certainly not of such intensity as to make her fully unconscious. Her statement in the Court in this regard may be some embellishment which is not unusual at the time of facing even chief-examination in the dock of the Court by such a victim who had lost her most precious asset (virginity) at the hands of accused in the backdrop of facts unfolded hereinabove. Her statement in the Court in this regard may be some embellishment which is not unusual at the time of facing even chief-examination in the dock of the Court by such a victim who had lost her most precious asset (virginity) at the hands of accused in the backdrop of facts unfolded hereinabove. Having been overpowered she had no option but to co-operate the accused permitting him to satisfy his sexual lust after initial little resistance. Her helpness cannot be inferred as her co-operation or active participation. It can never be tantamount of her willingness or consent as adumberated in Section 375, IPC. 14. I have looked into the evidence deposed by the prosecutrix as well as by her father and find that credibility of these witnesses have not been shaken even the least. Their long cross-examination at the hands of the defence Counsel could not elicit any answer which may create any doubt in the entire prosecution story. 15. Very minor discrepancies or irregularities have been pointed out by the learned Sr. Counsel on behalf of the accused, but those are not such vital as to belie the entire prosecution story. This is also accepted principle propounded by the Hon'ble Apex Court that even the irregularity observed by the Investigating Officer in the investigation can be overlooked into if the finding of facts as proved against the accused inspires the confidence of the Court. 16. So, in view of what have been stated above, I find no merit in the appeal preferred by the accused. It is liable to be dismissed. 17. As regards the appeal preferred by the State, this Court has found formidable evidence regarding the persistent threats to kill the victim and her father and to destroy her entire family if the recourse is taken to law by them against the accused. I think it is the mind numbing daredevil crime done by the accused with impunity to extend such threats to the victim and her father and he is liable to be punished for the offences under Sections 504 and 506, IPC also. In addition to, he is also found guilty of the offence under Section 509, IPC because in the presence of her mother, the modesty of the victim was enraged by calling her as a prostitute. 18. In addition to, he is also found guilty of the offence under Section 509, IPC because in the presence of her mother, the modesty of the victim was enraged by calling her as a prostitute. 18. So, for the offence of Section 504, IPC, the accused is punished with one year- s imprisonment and a fine of rupees five thousand. In default of fine, he will undergo three months- imprisonment further. For the offence of Section 506, IPC also, the accused convict is sentenced to one year- s imprisonment and a fine of rupees five thousand. In default of fine, he will undergo three months- imprisonment further. For the offence of Section 509, IPC, the accused convict is sentenced to one and half years imprisonment and a fine of rupees ten thousand. In default of fine, he will further undergo six months- imprisonment. 19. Consequently, the appeal preferred by the convict is dismissed and the appeal preferred by the State stands allowed. Appellant accused Rihan is in jail. He is to serve out the sentences awarded to him. It is made clear that the sentences awarded by this Court to the accused for the offences under Sections 504, 506 and 509, IPC shall run consecutively after his completing the sentences for rest of the offences awarded by the trial court. 20. Let a copy of this judgment and order, along with the lower court record, be sent to the trial court to ensure its compliance. Order accordingly.