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Uttarakhand High Court · body

2017 DIGILAW 103 (UTT)

Sonu S/o Late Ram Das v. State of Uttarakhand

2017-02-16

RAJIV SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. 1. This appeal is directed against the judgment and order dated 8.9.2016/9.9.2016 rendered by the FTC/Additional Sessions Judge/ Special Judge (POCSO), Rudrapur, District U.S. Nagar in Special S.T. No.201 of 2015, whereby the appellant/accused Sonu, who was charged with and tried for the offences u/s 363, 366 and 376 IPC, was sentenced to undergo ten years’ R.I. with fine of Rs.50,000/- and in default of payment of fine, to undergo six months’ additional simple imprisonment u/s 376(2)(f)(n) IPC and to undergo three years’ R.I. with fine of Rs.20,000/- and in default of payment of fine, to undergo three months’ additional simple imprisonment u/s 363 IPC and also to undergo ten years’ R.I. with fine of Rs.20,000/- and in default of payment of fine, to undergo three months’ additional simple imprisonment u/s 366 IPC. 2. Case of the prosecution, in a nutshell, is that PW3 Sugriv Singh lodged an FIR on 26.7.2015. According to the averments made in the FIR, on 22.7.2015, he had gone out of the house and his wife was also not present in the house. In absence of parents, the accused took away the daughter of complainant who was 16 years and 01 month of age. 3. The matter was investigated by the police. Victim was recovered. She was produced before the Court. Her statement u/s 164 Cr.P.C. was recorded before the Magistrate. She was medically examined. Challan was put up after completion of entire investigation. 4. Prosecution has examined a number of witnesses to prove its case. 5. Statement of the accused was also recorded u/s 313 Cr.P.C. He has denied the case of prosecution. 6. Accused was convicted and sentenced by the Trial Court, as noticed hereinabove. 7. Learned advocate appearing on behalf of the appellant has vehemently argued that the prosecution has not proved its case beyond reasonable doubt against the accused. 8. Learned Dy. Adv. General has supported the judgment and order dated 8.9.2016/9.9.2016. 9. I have heard learned advocates and gone through the judgment and record of the case carefully. 10. PW1, the prosecutrix, (name withheld) stated that the accused was her uncle. She had gone to her uncle’s house on 22.7.2015 after being annoyed with her family members. The accused had neither enticed her nor abducted her. She went to Haridwar. Accused came to see her. 10. PW1, the prosecutrix, (name withheld) stated that the accused was her uncle. She had gone to her uncle’s house on 22.7.2015 after being annoyed with her family members. The accused had neither enticed her nor abducted her. She went to Haridwar. Accused came to see her. Thereafter, she went to Roorkee from Haridwar along with the accused. Accused asked her why she had come to Haridwar. She remained in the company of accused for two days in Roorkee. She has not developed any physical relations with the accused. She was medically examined at District Hospital, Rudrapur. Her statement was recorded u/s 164 Cr.P.C. She has categorically deposed in her cross-examination that the assertion of physical relations with the accused was made under the pressure of police. She identified her signatures on the statement. She had stayed in Adarsh Girls’ Inter College, Bazpur. She was declared hostile and was cross examined by learned Additional District Government Counsel. In her cross examination by the learned Additional District Government Counsel, she again reiterated that due to fear and pressure of police she had deposed regarding physical relations between herself and Sonu. She also reiterated that the accused has neither enticed her and nor he took her to Roorkee. 11. PW2 Smt. Babita is the mother of the victim. According to her she was not at home on 22.07.2015. She had gone outside. Her husband was also not at home. When she came back, her daughter was missing. She searched for her daughter. Her husband also searched the victim at various places. Thereafter, they came to know that accused had enticed her daughter at 4 p.m. on 22.07.2015. Her daughter was aged about 16 years. 12. PW3 Sugreev is the father of victim. According to him, he had gone to market. His daughter was alone at home. When his wife came after fetching the grass, the daughter was not at home. The accused had come to their house. His wife has seen the motorcycle of Sonu near their house. According to him, Sonu had enticed his daughter in order to marry her and taken her along with him. His daughter also took away Rs.40,000/-. The date of birth of victim was 03.06.1999. 13. PW4 is Dr. Tanuja Sinha, who medically examined the prosecutrix and issued the medical certificate. His wife has seen the motorcycle of Sonu near their house. According to him, Sonu had enticed his daughter in order to marry her and taken her along with him. His daughter also took away Rs.40,000/-. The date of birth of victim was 03.06.1999. 13. PW4 is Dr. Tanuja Sinha, who medically examined the prosecutrix and issued the medical certificate. As per her opinion, no definite opinion regarding the rape on the body of victim could be given. 14. PW5 Anil Kumar Kaushik is the Senior Clerk in Adarsh Girls Inter College Bazpur. He has brought on record the transfer certificate issued from the School. According to the school records, the date of birth of the victim was 03.06.1999. 15. The matter was investigated by PW6 Aajendra Prasad. According to him, he recovered the prosecutrix alongwith the accused on 27.07.2015. The parents of the girl were informed. The clothes of the prosecutrix were taken into possession. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. The spot map was also prepared. 16. The case of the prosecution precisely is that the accused has enticed the prosecutrix and taken her away and committed rape on her. Prosecutrix (PW1) has not supported the case of the prosecution, so she was declared hostile. In her examination-in-chief, she has categorically deposed that the accused had neither enticed her nor abducted her. She had gone to Haridwar. Thereafter, she went to Roorkee. She has specifically testified that she had not developed any physical relations with the accused. 17. Now, as far as the statement u/s 164 Cr.P.C. is concerned, she has admitted that the statement was recorded before the Magistrate, however, she has deposed in her examination-in-chief that the statement qua physical relations with the accused was made under pressure from the police. She was declared hostile and was examined by learned ADGC. 18. Prosecutrix was medically examined by PW4 Dr. Tanuja Sinha. She has not given any conclusive opinion whether the rape was committed on the victim or not. 19. In the present case, the statements of prosecutrix and PW4 Dr. Tanuja Sinha are relevant. The Court has already noticed that the prosecutrix has specifically deposed that she had not developed any physical relations with the accused. She has even denied that the accused had enticed or kidnapped her. According to her, she left the house on her own volition. PW4 Dr. Tanuja Sinha are relevant. The Court has already noticed that the prosecutrix has specifically deposed that she had not developed any physical relations with the accused. She has even denied that the accused had enticed or kidnapped her. According to her, she left the house on her own volition. PW4 Dr. Tanuja Sinha, as noticed hereinabove, has not given any conclusive opinion whether the rape was committed on the victim or not. PW2 Smt. Babita is the mother of the prosecutrix. According to her, when she came back, the prosecutrix was not present at home. PW3 Sugriv, father of victim, had also gone out of the house. When he came back in the evening on 22.07.2015, he noticed that his daughter was missing. However, the fact of the matter is that the FIR was got registered on 26.07.2015. The delay in lodging the FIR is not fatal in all cases. However, the prosecution has failed to explain the period between 22.07.2015 to 26.07.2015, more particularly, when they knew the name of the accused 20. It has also come in the statement of PW4 Dr. Tanuja Sinha that on the external examination of the body of the prosecutrix, there was no mark of external injury. Hymen was torn but old. According to the statement of the prosecutrix, she had gone on her own volition with the accused at Haridwar and then to Roorkee. 21. Learned Deputy Advocate General appearing on behalf of the State has argued that the victim in her statement under Section 164 Cr.P.C. has deposed that the accused had maintained physical relations with her. However, the fact of the matter is that when the prosecutrix has appeared in the Court, she has not supported the case of the prosecution and has categorically deposed that she had not developed any physical relations with the accused. The statement to this effect recorded under Section 164 Cr.P.C. was at the instance of the police. Learned Trial Court has erred in law by giving undue importance to the statement of victim under Section 164 Cr.P.C. The statement under Section 164 Cr.P.C. is not a substantive piece of evidence. Statement under Section 164 Cr.P.C. can only be used to corroborate or contradict the evidence. Learned Trial Court has erred in law by giving undue importance to the statement of victim under Section 164 Cr.P.C. The statement under Section 164 Cr.P.C. is not a substantive piece of evidence. Statement under Section 164 Cr.P.C. can only be used to corroborate or contradict the evidence. Their Lordships of Hon’ble Apex Court in (1998) 4 SCC 605 in the case of “George & others vs. State of Kerela and Another”, have held that the statement recorded under Section 164 Cr.P.C. cannot be used as substantive evidence. Their Lordships have held as under: “36. We may now turn to the evidence of PW50, detailed earlier. From the judgment of the trial court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164 CrPC and not his evidence in court. The said statement was treated as substantive evidence; as would be evident from the following, amongst other observations made by the learned trial court: “If Ext. P-42 (the statement recorded under Section 164 CrPC) is found to be a genuine statement it can be used as an important piece of evidence to connect the accused with the crime.” In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him. Instead of appreciating the evidence of PW 50 from that perspective the trial court confined its attention mainly to his statement so recorded and discredited him. This legal infirmity apart, factually also the trial court committed patent errors. As earlier noticed, one of the grounds for disbelieving him was that in the trip-sheet the name of the person who performed the journey, namely, A-1 was not shown. If the trial court had cared to look into the other trip-sheets which form part of Ext. P-54 it would have found that in none of them the name of the person who hired the car is mentioned. The trial court was, therefore, not at all justified in commenting upon such non-mentioning of the name of the hirer and concluding therefrom that the document was suspect. The comments of the trial court that PW 50 made the statement before the Magistrate (Ext. The trial court was, therefore, not at all justified in commenting upon such non-mentioning of the name of the hirer and concluding therefrom that the document was suspect. The comments of the trial court that PW 50 made the statement before the Magistrate (Ext. P-42) to oblige the police as his brother was arrested in connection with an excise case is also without any basis whatsoever. In drawing the above inference the trial court was much influenced by the fact that the car in question, namely, KEK 3114 was seized by the police on 31-5-1990 and that it was released on 28-6-1990. According to the trial court it was wrongfully detained by the police for such a long period to compel PW 50 to make a statement according to its dictate. Once a car is seized in connection with a case it can be returned pursuant to the order of a competent court only and there is nothing on record to indicate that in spite of such an order the car was not returned so as to entitle the trial court to comment that the long detention of the car was itself a suspicious circumstance. Having gone through the evidence of PW 50 we find that each of the reasons canvassed by the trial court for disbelieving PW 50 is either legally unsustainable or factually incorrect.” 22. Thus, the prosecution has failed to prove the case against the accused, under the sections he was charged with, beyond reasonable doubt. It was necessary for the prosecution to prove under Section 363 IPC that the accused has forcefully compelled or induced the victim by deceitful means. Similarly the prosecution was required under Section 366 IPC to prove the basic ingredients i.e. kidnapping or abduction must be with the intent that the victim is compelled or knowing it to be likely that she will be compelled to marry any person against her will; or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse; or by means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be, forced or seduced to illicit intercourse. 23. 23. In the present case, the prosecutrix herself has gone out from her house and stayed with the accused voluntarily. 24. Accordingly, the appeal is allowed. Impugned judgment and order dated 08.09.2016/09.09.2016 are set aside. Appellant is acquitted from the charges levelled against him. He is in jail. Let he be released from jail forthwith if not wanted in any other case. 25. Let a copy of this judgment and order along with the LCR be transmitted to the Court below for compliance of the order forthwith.