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2017 DIGILAW 541 (UTT)

Ishwar Dev v. State of Uttarakhand

2017-10-11

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. This criminal jail appeal is received through the Superintendent, Sub-Jail, Haldwani, District Nainital, where the appellant has challenged the judgment and order dated 01.11.2013, passed by the 3rd Additional District and Sessions Judge, Rudrapur, Udham Singh Nagar, in Sessions Trial No. 56 of 2013 (State Vs. Ishwar Dev), in which the accused/appellant has been convicted under Sections 363/366 and 376 of the Indian Penal Code (from hereinafter referred to as the “IPC”), and has been sentenced to undergo simple imprisonment for the offence under Section 363 of IPC for a period of three years with a fine of Rs.1,500/- and fifteen days additional simple imprisonment in case of default in payment of fine and for the offence under Section 366 of IPC, he has been sentenced to undergo three years of simple imprisonment with a fine of Rs.1,500/- and fifteen days additional simple imprisonment in case of default in payment of fine. The appellant has further been sentenced for the offence under Section 376 of IPC for seven years of rigorous imprisonment with a fine of Rs.10,000/- and one month additional simple imprisonment in case of default of payment of fine. All the sentences are directed to be run concurrently. The appellant is in jail. 2. The case of the prosecution before the trial court was that the appellant had kidnapped the minor daughter of the informant (Prem Singh) in order to seduce her and force a marriage on her. There is also a charge of rape committed on 14.11.2012 when the victim was in the illegal custody of the appellant. 3. The case starts from the first information report which was lodged by the father of the victim at Police Station, Kotwali Rudrapur, District Udham Singh Nagar on 16.11.2012 at 06.40 P.M., alleging that his daughter, who is 14 years of age is missing since the night of 14.11.2012. The police thereafter recovered the daughter of the informant i.e. the victim on 17.11.2012 from the bus station, Rudrapur, along with the accused. The daughter of the informant on the same day was medically examined at “Mahila Chikitasalaya”, (Women Hospital), Rudrapur by Dr. Tanuja who is PW-2. In the medical examination, it has come that the weight of the victim is 50 Kg, built is average, auxiliary hair present, pubic hair present, breast well developed, no injury was found on external part. The daughter of the informant on the same day was medically examined at “Mahila Chikitasalaya”, (Women Hospital), Rudrapur by Dr. Tanuja who is PW-2. In the medical examination, it has come that the weight of the victim is 50 Kg, built is average, auxiliary hair present, pubic hair present, breast well developed, no injury was found on external part. On internal examination, no bleeding/discharge was found and no injury was found on the vagina and hymen was found to be torn, which was “old”. Thereafter, two slides of vaginal discharge were taken and sent for further examination. The pathological report is negative, which further states that “no definite opinion about the rape can be given”. The doctor who had medically examined the victim was a prosecution witness during trial where she has categorically given a statement that on examination of the victim she found that the victim was habitual to sexual intercourse and further she had referred the matter for medical determination of the age of the victim. Interestingly, on examination of the record, it was found that there has been no medical determination of the age of the victim, inspite of clear instructions of the Doctor. The determination of the age of the victim is on the basis of her school certificates, to which we shall refer shortly. 4. Meanwhile, after the girl was recovered and medically examined, she was produced before the learned Magistrate on 19.11.2012, where in her statement under Section 164 of Code of Criminal Procedure (from hereinafter referred to as the “CrPC”), she says that she is a student of Class IX at “Fauji” Malkota School. She has further said that this boy (reference is to the accused) was staying as a tenant in the house of her friend “Rupa” and it was Rupa who introduced her to this boy (i.e. the accused). She then states that she was not knowing at that time that the accused is already married, and the accused forced himself upon her, where the reference is obviously of a forced sexual intercourse, on promise that he would marry her. She has also said in her statement under Section 164 of CrPC that police had caught them together. She then states that she was not knowing at that time that the accused is already married, and the accused forced himself upon her, where the reference is obviously of a forced sexual intercourse, on promise that he would marry her. She has also said in her statement under Section 164 of CrPC that police had caught them together. It is also on record that the appellant (i.e. the accused) at the relevant time was about 22 years of age (this is on the basis of his statement which was given by him before the trial court under Section 313 CrPC on 17.10.2013), the recorded age of the accused is 22 years, although the police has not done any medical examination of the accused, though it is mandatory requirement under Section 53A of CrPC. 5. Be that as it may, the police after the investigation filed the charge-sheet against the appellant under Sections 363/366 and 376 of IPC before the learned Magistrate. The learned Magistrate had committed the case to the Sessions Court. The learned Session Judge subsequently framed the charges against the accused under Section 363/366 and 376 of IPC and the trial commenced. 6. The prosecution in order to establish its case had examined nine witnesses, which include the victim as PW-1, Dr. Tanuja, who had medically examined the victim on 17.11.2012 as PW-2, the father of the victim (Prem Singh) as PW-3, the friend of the victim who has alleged to have introduced the accused to the victim i.e. Rupa as PW-4, etc. 7. According to the statement of PW-4 i.e. Rupa, she knows the victim since Class IX and the accused had met the victim outside the school gate. PW-4 denies the fact that she had introduced the accused to the victim. She further though admits that the accused resides at the house of her grandmother at village “Malkota”, the accused is therefore not her tenant but a tenant of her grandmother. It has further come in evidence that her house is near the house of her “Nani”, i.e. her grandmother, where the accused resides. In her statement, she has further stated that the accused had some differences with her “Nani” on payment of house rent. On this disclosure, in her examination-in-chief, on the request of the prosecution, this witness was declared hostile. 8. In her statement, she has further stated that the accused had some differences with her “Nani” on payment of house rent. On this disclosure, in her examination-in-chief, on the request of the prosecution, this witness was declared hostile. 8. PW-3 who is the father of the victim in his statement has said that his daughter was missing since 14.11.2012. Efforts were made to find her but in vain, and subsequently an FIR was lodged by him on 16.11.2012. In the FIR, he admits that no reasons have been assigned as to why delay has been caused in lodging the FIR. Nothing further has come in his statement, which is worthwhile. 9. PW-1 the victim, in her statement before the court admits that she had known the accused, and on 14.11.2012 the accused had promised that he would marry her and thereafter he had taken the victim to his rented accommodation at village “Malkota”, where after closing the door of his room he asked the victim to take off her clothes and later against her wishes had forced himself upon her. However, she never states that as to what compelled her to stay in the said rented accommodation for three days. She only states that on 17.11.2012 both of them were caught at the bus station at Rudrapur by the police. She admits that on 19.11.2012 while making the statement before the learned Magistrate, she has not said anything about the rape. 10. There are contradictions in the statements of the victim about the fact that as to how she met the accused and there is absolutely nothing which has come forward from the victim as to under what compelling circumstances, she stayed against her wishes in a rented accommodation, which is not in a secluded place but in the middle of a village. Moreover, the medical examination which was done after the recovery of the victim on 17.11.2012 also does not disclose any kind of injury on the body of the victim either external or internal, which may suggest rape, rather the medical report clearly suggests that hymen is torn out and the victim is habitual of sexual intercourse. 11. Moreover, the medical examination which was done after the recovery of the victim on 17.11.2012 also does not disclose any kind of injury on the body of the victim either external or internal, which may suggest rape, rather the medical report clearly suggests that hymen is torn out and the victim is habitual of sexual intercourse. 11. Definitely as per the school leaving certificate, the recorded age of the victim in the school is 22.06.1997 but there is serious doubt as to the veracity of this date of birth for the reason that when PW-7 who is the Principal of Government Primary School, Bindukhera was examined, he has categorically said in his statement that while recording the date of birth of the victim, no proof of her date of birth was given by the victim but on the mere statement of her father, the date of birth of the victim was recorded as 22.06.1997. However, the medical examination clearly shows the presence of auxiliary hair and pubic hair and other physical examination. It cannot be said that the girl in any case was less than 16 years of age. Moreover, on this aspect, the doctor who had examined the girl has also categorically stated in her statement before the trail court that she has referred the matter for determination of the medical age of the victim. There is nothing on record to suggest that the medical examination was ever conducted. 12. In these circumstances, there are serious doubts as to the veracity of the date of birth document of the victim. On the other hand, from the examination of other material, including the medical report, it clearly reveals that the girl was more than 16 years of age. Definitely, there are statements of the girl to the effect that the accused had committed rape upon her and in a given circumstance, the statement of the victim which is akin to the statement of injured witness would be sufficient to establish conviction of rape. It is also true that evidence has to be weighed and not counted. Single evidence can be enough particularly when it is of a victim. The other side of this, however, is also equally true, which is, when the conviction of rape can be done on the basis of the sole testimony of the victim, the credibility of such a statement has to be examined very closely. Single evidence can be enough particularly when it is of a victim. The other side of this, however, is also equally true, which is, when the conviction of rape can be done on the basis of the sole testimony of the victim, the credibility of such a statement has to be examined very closely. 13. It is the clear and considered view of this Court that so far the commission of rape is concerned, the testimony of the victim cannot be said to be true, whereas merely on the basis of testimony of the victim commission of rape has been established. The medical examination clearly suggests that there is no evidence of rape. Moreover, the physical examination of the girl clearly suggests that she is more than 16 years of age and the fact that she had stayed with the accused not by force or under duress but with her own free will for three days. Therefore, the offence under Section 376 IPC is not made out. Similarly, it is not a case where a case of kidnapping can be made out under Section 363 IPC, considering the fact that the age of the victim (being less than 16 years), has not been clearly established by the prosecution. What remains further is the offence under Section 366 of IPC. Section 366 of IPC reads as under:- “Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.” 14. In her first statement given by the victim before the learned Magistrate under Section 164 CrPC, the victim had clearly stated that she was not knowing that the accused is already married. Her statement which has been given before the trial court also suggests that the main reason why she went with the accused was that she was enticed or rather seduced by the accused for marriage. Consequently the commission of the offence under Section 366 of IPC is upheld and to that extent the appeal of the appellant is dismissed. The appellant has been sentenced for three years of simple imprisonment. All the same, in case the appellant has already undergone the sentence, he is now liable to be released. 15. In view of the above observations, the criminal jail appeal is partly allowed. The judgment and order dated 01.11.2013 passed by the 3rd Additional Session Judge, Rudprapur, Udham Singh Nagar is set aside so far as the conviction and sentence awarded to the accused under Sections 376 and 363 of IPC are concerned. 16. The appellant is convicted under Section 366 of IPC and has been sentenced for three years of simple imprisonment. This part of the order of the court below requires no interference. The conviction under Section 366 of IPC is upheld. In case the appellant has already undergone three years of imprisonment (pre trial period including), he shall be forthwith released, unless he is wanted in some other case. 17. Let the lower court record be sent back to the court below.