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2018 DIGILAW 18 (UTT)

Naresh Maurya v. State of Uttarakhand

2018-01-08

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 27.07.2013 passed by the learned Additional Sessions Judge/Special Judge (E.C. Act), Nainital in Session Trial No. 120 of 2012, in which the accused/appellant has been convicted under Sections 363 and 366 of IPC and has been sentenced to undergo rigorous imprisonment for the offence punishable under Section 363 of IPC for a period of three years with a fine of Rs.3,000/- and three months simple imprisonment in case of default in payment of fine. For the offence punishable under Section 366 of IPC, he has been sentenced to undergo four years of rigorous imprisonment with a fine of Rs.5,000/- and three months of simple imprisonment in case of default in payment of fine. Although the appellant had also faced the trial under Section 376 of IPC as well but he has been acquitted of this charge i.e. under Section 376 IPC. 2. Brief facts of the case are that a missing report was lodged by the father of the alleged victim that his daughter, who is a minor, is missing since 11.05.2012. The name of the present appellant came up during the course of investigation. After a period of 12 days, the prosecutrix was recovered along with the present appellant on 23.05.2012 from “Lalkuan” Railway Station, near Haldwani, Nainital. Subsequently, charge-sheet was filed against the present appellant. The matter was committed to Sessions Court and thereafter the learned Sessions Judge, Nainital framed the charges against the appellant under Sections 363/366 and 376 of IPC. 3. The prosecution in order to establish its case examined as many as 7 witnesses. Out of these prosecution witnesses, the main prosecution witnesses are PW-1 i.e. the prosecutrix, PW-2 i.e. father of the victim who is also the complainant and PW-4, the doctor who had medically examined the prosecutrix on 23.05.2012 at Mahila Hospital, Haldwani. 4. PW-1 in her statement under Section 164 of CrPC has categorically said that she was enticed by the appellant and thereafter she was taken by the appellant in his motorcycle to Delhi, where she was kept for 8 days under threat of her life. The allegation precisely is that the appellant who was wielding a knife had threatened the prosecutrix and raped her. The allegation precisely is that the appellant who was wielding a knife had threatened the prosecutrix and raped her. She was repeatedly raped for 8 days by the appellant in Delhi. It has also been said by her that the appellant promised that he would marry her etc. 5. On medical and forensic examination, it has come out that the age of the prosecutrix is more than 16 years but less than 18 years. 6. The prosecutrix is an illiterate girl. In her examination-in-chief, she has clearly stated that she was confined in a house against her wishes and was repeatedly raped by the appellant. It has also come in the statement of the prosecutrix that the appellant had promised to marry her. 7. PW-2 who is the father of the prosecutrix, is also the complainant. In his examination-in-chief, he has clearly said that his daughter is minor. She was recovered alongwith the present appellant. He further said that the appellant was also a share-cropper and used to work on “Batai” as well as it has also come out that he used to do work of agriculturist on an agricultural land owned by others. 8. On the recovery of the prosecutrix, she was medically examined. The medical examination report states that no definite opinion about rape can be given. No injuries either external or internal were noticed on the body of the prosecutrix. 9. Based on the medical evidence which was there before the trial court, the appellant was acquitted under Section 376 of IPC but the appellant was convicted by the trial court under Sections 363 and 366 of IPC. 10. Perused the relevant papers of the paper book. 11. The evidence has been perused and this Court has examined the statements of PW-1 and PW-2. In the statements of PW-1 and PW-2, it has clearly come out that the appellant has enticed the prosecutrix, who is a minor. 12. In view of the above statements of the witnesses, the conviction seems to be appropriate under Section 363 of IPC. Section 363 of IPC reads as under:- “363. Punishment for kidnapping.- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 13. Section 363 of IPC reads as under:- “363. Punishment for kidnapping.- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 13. What has been substantially proved against the appellant is that he has kidnapped the prosecutrix from the legal guardian. Prosecutrix is definitely less than 18 years of age and has been taken without the consent of her legal guardian, a fact which is undisputedly proved in the trial court. As far as Section 366 of IPC is concerned, since it has come out categorically in the statement of the prosecutrix given under Section 164 of CrPC that she was repeatedly promised by the appellant that he would marry her and thereafter on threat of life, the appellant raped the prosecutrix, therefore, 366 of IPC is also made out against the appellant and the conviction of the appellant under Section 366 of IPC seems to be proper and the sentence awarded by the trial court for a period of four years seems to be appropriate. 14. In view of the aforesaid observations, the criminal jail appeal stands dismissed. 15. The appellant has already undergone the sentence and released from the jail. 16. Let the lower court record be sent to the court concerned.