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2016 DIGILAW 778 (UTT)

Nawal Kishor @ Sittu v. State of Uttarakhand

2016-10-28

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This instant appeal has been filed against the judgment dated 21.07.2016, rendered by the learned District & Sessions Judge, Pauri Garhwal in Special Sessions Trial No. 13 of 2015, whereby the appellant (hereinafter referred to as the accused), who was charged with and tried for commission of offence under Section 376 of the Indian Penal Code (from hereinafter referred to as “IPC”) has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- for commission of offence under Section 376, and to further undergo ten years rigorous imprisonment and to pay a fine of Rs.5,000/- for commission of offence punishable under Sections 3/4 of the Protection of Children from Sexual Offences Act. In default of payment of fine, to further undergo three months’ simple imprisonment for commission of offence punishable under Sections 376 IPC, 3/4 of the Protection of Children from Sexual Offences Act. All sentences were ordered to run concurrently. 2. The case of the prosecution, in nutshell, is that informant Gyan Singh (P.W-1), father of the victim moved a Tehrir report to the Revenue Sub Inspector, Patti Kapolsyun-3, Tehsil Pauri, District Pauri Garhwal with allegations that he was serving at Chandigarh, while his daughter is residing with grandmother at home, Village Jakh Khali. On 10.07.2015, accused committed rape forcibly on his daughter and prior to it, i.e., on 18.04.2015, he had also committed rape on the victim by deception. His daughter was minor. The victim narrated the whole incident to him, when she came to Chandigarh. On the basis of this, an FIR (Ex.Ka.7) was registered on 27.07.2015 at 12.45 P.M., under Section 376 and under Sections 3/4 of the Protection of Children from Sexual Offences Act. 3. The prosecutrix was medically examined by the doctor of District Hospital, Pauri and Base Hospital, Srinagar, District Pauri Garhwal. The statement of the prosecutrix was also recorded under Section 164 Code of Criminal Procedure (from hereinafter referred to as “CrPC”). Investigation was completed. Challan was put up in the Court after completing all the codal formalities. 4. To prove its case, prosecution has examined as many as eight witnesses. Accused was also examined under Section 313 CrPC and he denied the case of the prosecution. 5. Learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case. Challan was put up in the Court after completing all the codal formalities. 4. To prove its case, prosecution has examined as many as eight witnesses. Accused was also examined under Section 313 CrPC and he denied the case of the prosecution. 5. Learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case. On the other hand, learned State Counsel has supported the judgment dated 21.07.2016. 6. I have heard the learned counsel for the parties and have also gone through the judgment and records of the case very carefully. 7. PW-2 is the prosecutrix (name withheld). She testified that she was residing at village Jakh Khali with her grandmother, and her parents were residing at Chandigarh. She further stated that her grandmother was residing alone in the village and the accused was also residing adjacent to her grandmother house; one day, accused hugged her forcibly and he used to give her gifts at several occasions. Prosecutrix has further stated that she wanted to go to Jwalpa Devi Temple and the accused took her to Jwalpa Devi Temple on 10.07.2015, where he gave cold drink to her and after consuming it, she became unconscious. Thereafter, the accused took her to the jungle and committed rape forcibly with her. She further stated that when the accused took her to Jwalpa Devi Temple, he told her that he will marry her. Prior to this incident, when she was going to the school i.e., on 18.04.2015, accused forcibly took her to the jungle and committed rape with her. Prosecutrix narrated the incident to her grandmother. Her grandmother informed her parents. Thereafter, her parents came to the village and lodged an FIR. The statement of prosecutrix was also recorded under Section 164 CrPC before the Judicial Magistrate. 8. PW-1 is the father of the prosecutrix. He was serving at Chandigarh along with his family. His mother is residing alone at village Jakh Khali. His daughter was also residing with her grandmother. Prosecutrix was studying in Class-9th. PW-1 further stated that his mother had informed him that in the village, people are saying something wrong about his daughter. Then, he sent his son Rahul to the village on 13.07.2015, who took the victim to Chandigarh. His mother is residing alone at village Jakh Khali. His daughter was also residing with her grandmother. Prosecutrix was studying in Class-9th. PW-1 further stated that his mother had informed him that in the village, people are saying something wrong about his daughter. Then, he sent his son Rahul to the village on 13.07.2015, who took the victim to Chandigarh. He further stated that when his daughter came to Chandigarh, she told that on 10.07.2015, accused, who is the resident of village Jakh Khali, has committed rape with her on deception of marriage and prior to this, he had also committed rape with her on 18.04.2015. Thereafter, he, along with victim, came to village Jakh Khali on 27.07.2015 and lodged the first information report against the accused. 9. PW-3 Dr. Kanak Banodha, testified that she was posted in Female Hospital at Pauri, as a Senior Female Doctor. She medically examined the victim. She had prepared the medical report of the victim, which is Ex.Ka.4. She has taken the vagina smear sample for pathology examination and called for the pathology reports about vaginal smear, blood, urinal, ultrasound test and prepared the supplementary report. 10. PW-4 Shashi Devi, testified that she is the grandmother of the prosecutrix. She was residing at village Jakh Khali, Patti Kapolsyun alone, and her son was residing at Chandigarh. The prosecutrix was residing with her. She further stated that something wrong had happened with the victim. Thereafter, she informed the mother of the victim telephonically about the incident and then her son Gyan Singh sent his son to the village, who took the victim to Chandigarh. 11. PW-5 Babita Devi, who is the mother of the victim, testified that her daughter was residing with her grandmother at village Jakh Khali. She further stated that her mother-in-law telephoned her that something wrong has happened with the victim and then her husband sent Rahul to the village on 13.07.2015, who took the prosecutrix to Chandigarh. 12. PW-6 Revenue Sub Inspector, who is the formal witness, has proved the prosecution documents. 13. PW-8 Aslam Mohammad is the Data Entry Operator in the Registrar Office, Birth and Death Department, Sector 17, Nagar Nigam, Chandigarh. He has proved that the date of birth of the victim is 16.09.1999, which is Ex.Ka.12, and the certificate of the date of birth issued by the Sub Registrar is Ex.Ka.13. 14. 13. PW-8 Aslam Mohammad is the Data Entry Operator in the Registrar Office, Birth and Death Department, Sector 17, Nagar Nigam, Chandigarh. He has proved that the date of birth of the victim is 16.09.1999, which is Ex.Ka.12, and the certificate of the date of birth issued by the Sub Registrar is Ex.Ka.13. 14. According to the evidence placed by the prosecution, the incident took place on 18.04.2015 and according to the accused, the date of birth of the prosecutrix is 16.09.1996. The date of birth of the prosecutrix was duly supported by PW-8 Aslam Mohammad, who is the Data Entry Operator in Registrar Office, Birth and Death Department, Sector 17 Nagar Nigam, Chandigarh, who stated on oath that as per the entry in the register the date of birth of the victim is 16.09.1999. In the exhibit Ka-7, the age of the prosecutrix is 15 years. In Medicolegal Certificate Paper No. Ka-7/3, the age of the victim is mentioned as 16 years and in Pathology Investigation Report Paper No. Ka-7/5, the age of the victim is mentioned as 15 years. In Report of Radiologist Paper No. Ka-7/6, the age of the victim is mentioned as 16 years. In X-ray Digital Receipt Paper No. Ka-7/8 and O.P.D. Slip Paper No. Ka-9, the age of victim is mentioned as 16 years. The date of birth of the prosecutrix has been duly proved by PW-8 Aslam Mohammad. 15. Accused has produced D.W.-1 Smt. Anita Dobhal to prove that the age of the victim is 16.09.1996. The statement of D.W.-1 Smt. Anita Dobhal does not inspire confidence as she was not certain as to who had made the changes in the date of birth of the prosecutrix. 16. PW-2, who is the victim, has categorically stated that the accused has committed forcible intercourse with her. The statement of PW-2 has been duly corroborated by the statements of PW-1 Gyan Singh, father of the prosecutrix, PW-5, mother of the prosecutrix; and PW-4 grandmother of the prosecutrix. 17. The statement of the prosecutrix was recorded under Section 164 CrPC. 18. Learned counsel for the appellant has argued that there is delay in registration of the first information report. It is settled law that FIR should be registered expeditiously, but in case, there is delay, the same can be explained. In the present case, the prosecution has duly explained the delay. 18. Learned counsel for the appellant has argued that there is delay in registration of the first information report. It is settled law that FIR should be registered expeditiously, but in case, there is delay, the same can be explained. In the present case, the prosecution has duly explained the delay. The prosecutrix was living alone with her grandmother, who is an old lady. When she came to know about this incident, she informed her daughter-in-law and the father of the prosecutrix. The father of the prosecutrix came to the village and got the first information report registered. 19. Learned counsel for the appellant has vehemently argued that the prosecution has only relied upon the statements of close relatives. There is no law that the statements of interested witnesses can be relied upon. The only rider is that the statement has to be read with caution. The evidence of interested witnesses cannot be ignored. 20. Learned counsel for the appellant has drawn the attention of this Court to the statement of DW-2 Dilwar Singh and argued that he is the witness of compromise. The compromise, arrived at, further proves that the accused has admitted his guilt. 21. Rape is a heinous crime and the matter cannot be permitted to be compromised. 22. The prosecution has proved its case beyond reasonable doubt. 23. Accordingly, there is no merit in the appeal and the same is hereby dismissed. 24. Pending application, if any, also stands disposed of.