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2017 DIGILAW 556 (UTT)

Khadku v. State of Uttarakhand

2017-10-25

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. By means of this jail appeal the judgment and order of conviction dated 02.5.2015 rendered by Special Judge, POCSO, Dehradun has been put under challenge. 2. The learned Judge has found the accused guilty for the offence of section 363 IPC sentencing him to two years simple imprisonment along with Rs. 500/- fine. In default of payment of fine he shall undergo 15 days simple imprisonment further. The accused has also been found guilty for the offence of section 366-A wherefor the learned Judge has sentenced him 5 years simple imprisonment along with Rs. 1,000/- fine. In default of payment of fine he has been asked to undergo 15 days further simple imprisonment. The accused has also been convicted for the offence of section 376 IPC sentencing him 10 years rigorous imprisonment along with Rs. 10,000/- fine. In default of payment of fine he has been asked to undergo 15 days simple imprisonment. Conviction has also been recorded under section 4 of the Protection of Children from Sexual Offences Act 2012 (herein after called as the Act) and sentenced to 7 years rigorous imprisonment along with Rs. 5,000/- fine. In default of payment of fine he has been asked to undergo 15 days simple imprisonment further. All the sentences have been directed to run concurrently adjusting the period of imprisonment which he has undergone during the course of trial. 3. The incident occurred on 03.4.2014 around 06/07:00 PM when victim Km. Tara, aged about 12 years (date of birth 01.4.2002) was guarding the wheat crop of her father. She was apprehended by the accused and forcibly taken away in thatched like structure nearby. She was kept confined in that premises over night and during the whole night she was subjected to forcible sexual intercourse and was left there at dawn of the next day. The accused fled away from the spot. Victim came herself to her house and discloses the whole incident to her mother who in turn narrated the same to her husband Mr. Tiku. So, the FIR was handed over to the Revenue Sub Inspector of the circle which is exhibit-ka 1. The chic report is exhibit-ka 5 which was lodged on 04.4.2014 at 01:00 PM while the place of occurrence is around 6 km. distance from the Patwari circle outpost. 4. The report was lodged under section 376 IPC. Tiku. So, the FIR was handed over to the Revenue Sub Inspector of the circle which is exhibit-ka 1. The chic report is exhibit-ka 5 which was lodged on 04.4.2014 at 01:00 PM while the place of occurrence is around 6 km. distance from the Patwari circle outpost. 4. The report was lodged under section 376 IPC. Statement of the girl under section 164 was got recorded by the Judicial Magistrate, Dehradun on 13.5.2014. The girl was then produced for medical examination in the Govt. Community Health Center, Chakrata on 04.4.2014 at 07:45 PM where she underwent the medical examination by the competent doctor. The following report was submitted: 1. Stains of dried blood and secretion seen around the genital area. 2. Blood is seen coming from vagina. 3. Vaginal examination is painful/tender. Hymen is ruptured. 4. In the opinion of doctor physical signs were suggestive of sexual assault and penetration. 5. Doctor took away the following samples: 1. Dried scrapping around genitalia. 2. Vaginal secretion. 3. Salwar was taken, sealed and handed over to police for further examination. 6. Such articles were sent for the Forensic Science Laboratory examination. The report whereof is available on the record. It suggests that semen could not be detected on either of these articles. 7. The investigation culminated into the submission of charge sheet for the offence of section 376 IPC r/w 4/6 of the Act but the learned Judge levelled the charges for the offence of section 363, 366A, 376 IPC as well as section 4 of the Act. The accused could be arrested after 16 days of the occurrence on 19.4.2014. So, there was no propriety/relevancy for his medical examination. However, he is undergoing incarceration since then. 8. The prosecution has examined PW1 Tiku, the informant/father of the victim, who has proved the lodging of the first information report. He is quite illiterate villager of the remote hills. However, nothing could come out to disbelieve his statement. 9. The star witness is Km. Tara, aged about 12 years. He has deposed that accused-Khadku who is her uncle was in a drunken state and forcibly took her to nearby thatched covered premises and kept her confined for the whole night. She was permitted to leave the place around 06:00 AM in the morning. So, after coming to the home she narrated the whole incident to her mother. He has deposed that accused-Khadku who is her uncle was in a drunken state and forcibly took her to nearby thatched covered premises and kept her confined for the whole night. She was permitted to leave the place around 06:00 AM in the morning. So, after coming to the home she narrated the whole incident to her mother. Thereafter, her father took her for medical examination. When the accused tried to take away forcibly she raised the screams but of no avail in the premises where she was forcibly sexually assaulted. It was dark all around at the time of forcible sexual assault attempt. She cried but none came there to her rescue. At the time of incident the accused forcibly put off all the clothes. 10. PW3 is Dr. Manvendra Kaur, who examined the victim on 04.4.2014 at around 07:45 PM and has proved the medical examination report exhibit-ka 2 which has been aforementioned. The doctor has proved that in her opinion it was a case of sexual assault and penetration too because the hymen was ruptured (broken). The doctor has further reiterated that if this victim is subjected to forcible sexual intercourse in the night of 03/04.4.2014, then the rupturing of the hymen could have been in such a manner along with laceration. 11. Doctor has further proved that the menstruation cycle of the victim had not commenced by that time, therefore, the dried scrapping as well as lacerations around genitalia were the result of the sexual assault. It has also been proved that there was reddish swelling on all around of vaginal part. 12. PW4 Ms. Sarita Pandey is the Principal and has proved the date of birth 01.4.2002 of the victim. PW5 is the Revenue Sub Inspector of the circle who has recorded the first information report in the concerning register and has sent the items to the forensic science laboratory, the report whereof has been proved. 13. The accused under section 313 Cr.P.C. statement has taken the plea of alibi that on the date of occurrence he was in Himachal Pradesh, but he has not substantiated this statement by any evidence much less reliable evidence. He has produced DW1 Mr. Supa, aged about 58 years, in his defence who has proved that Khadku is the married person and he got married 5 to 6 years ago. 14. He has produced DW1 Mr. Supa, aged about 58 years, in his defence who has proved that Khadku is the married person and he got married 5 to 6 years ago. 14. I think this witness is not reliable because the age of Khadku at the time of occurrence was around 18 years so how it could be accepted that he got married at the age of 12 only. Even if this statement is accepted for a moment that the accused was married person then also such status can’t obviate him from the commission of this type of crime. 15. DW2 is Mr. Jagat Ram. He has also not deposed anything which may create a doubt in the prosecution story. 16. In view of what has been discussed above, I feel there is no force in this appeal. It is hereby dismissed but at the same time, I feel it expedient in the interest of justice to modify the quantum of sentence as under: For the offence of section 363 & 366-A as well as for the offence of section 4 of the Act the sentence and the fine imposed are not disturbed. 17. However, for the offence of section 376 IPC I modify the sentence from 10 years rigorous imprisonment to 7 years only along with fine of Rs. 1,000/- instead of Rs. 10,000/-. In default of payment of fine he will further undergo 15 days imprisonment. 18. All the sentences so awarded shall run concurrently and the period which the appellant has already undergone during the course of trial and after recording of the conviction shall be adjusted in the total period of sentence calculated by the competent authorities.