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2018 DIGILAW 73 (UTT)

Chinta Ram @ Chintu v. State of Uttarakhand

2018-02-26

LOK PAL SINGH

body2018
JUDGMENT : Lok Pal Singh, J. Present Criminal appeal is preferred against the judgment and order dated 28.08.2014 passed by Special Judge (POCSO Act)/Sessions Judge Nainital, in Sessions Trial No. 169 of 2013, State versus Chintaram @ Chintu, whereby the appellant has been convicted under sections 376, 452 and 506 of IPC. Under Section 376 IPC, he has been sentenced to 10 years rigorous imprisonment along with fine of Rs.20,000, in default of payment of which, he has been directed to undergo further imprisonment for a period of six months; u/s 452 IPC, he has been sentenced to three years’ rigorous imprisonment along with fine of Rs.5,000/- in default of payment of which, he has been directed to undergo further imprisonment for a period of three months; and u/s 506 IPC, he has been sentenced to two years’ rigorous imprisonment along with fine of Rs.5,000/, in default of payment of which, he has been directed to undergo further imprisonment for a period of one month. All the sentences were directed to run concurrently. 2. Prosecution story, in brief, is that the complainant is father of prosecutrix. He made a complaint on 4.10.2013 at P.S. Kaladhungi District Nainital stating therein that he is a labour. His wife died about 8/9 years ago and mostly he remains outside his house due to his labour work and his children remain alone at his house. On 3.10.2013, when he came to his house in the evening, then his daughter (prosecutrix), age about 14 years, told him that on 28.9.2013 at 11-12 in the night, accused entered into thier house and forcibly committed rape with her and also threatened her for dire consequence, if she discloses this incident to anyone. 3. On the basis of the said complaint an FIR No. 57 of 2013 was lodged against the accused/appellant under Sections 376 and 452 of IPC. The investigation of the case was handed over to PW5 Sub Inspector Vijay Prakash. On 04.10.2013, the prosecutrix was medically examined by Dr. Bhawana Joshi, Medical Officer. She opined that as no live or dead spermatozoa was found in vaginal smear examination therefore no definite opinion regarding rape could be given, but possibility cannot be ruled out that the prosecutrix was subjected to sexual assault. The medical officer advised x-ray of the prosecutrix for age determination. As per the radiological report, the prosecutrix was less than 15 years. The medical officer advised x-ray of the prosecutrix for age determination. As per the radiological report, the prosecutrix was less than 15 years. On 05.10.2013, statement of prosecutrix was recorded under Section 164 of Cr.P.C. before the Magistrate. During the course of investigation, the Investigating Officer recorded the statements of witnesses, visited the spot and prepared the site-plan, arrested the accused person and after completing the investigation, submitted charge sheet against the accused-appellant for his trial in respect of offences punishable under Section 376, 506 and 452 of IPC. 4. The Magistrate committed the trial to the Sessions Judge after giving necessary copies as required under Section 207 of Cr.P.C. on 27.11.2013, Ist Addl. Sessions Judge, Haldwani, framed charge against the accused appellant for the offences punishable under Section 452, 376 and 506 of IPC and one punishable under Section 4 of POCSO Act. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 5. On denial of offence, the trial was begun. In order to prove its case, the prosecution got examined PW1 complainant and father of the prosecutrix, PW2 prosecutrix, PW3 brother of the prosecutrix, aged about 11 years, PW4 Bhawna Bist, Scribe of the FIR, PW5 Sub Inspector Vijay Prakash, Investigating Officer of the case, PW6 Constable Jitendra Singh, PW7 Dr. Babita Joshi Women Health Officer, PW8 Girish Bhatt the Chief Office Assistant of Government Inter College, Patkot (kotabag), District Nainital. 6. The prosecution witnesses, mainly the complainant (father of the prosecutrix), the prosecutrix herself and her minor bother aged about 11 years, have corroborated the story as narrated in the FIR and have supported the prosecution case. In addition to that, complainant and prosecutrix have stated that the house was locked from inside and after breaking the bolt of the door the accused entered in the house, threatened the prosecutrix and under threat he committed rape with her. The prosecutrix has stated that she was under the threat as the accused was threatening her to face the dire consequences. The minor brother of the prosecutrix has stated that after the incident the accused went to the kitchen and bring an axe (kulhadi) and threatened to kill all of them, if anyone discloses this incident. 7. PW4 Bhawna Bisht is scribe of the FIR. The minor brother of the prosecutrix has stated that after the incident the accused went to the kitchen and bring an axe (kulhadi) and threatened to kill all of them, if anyone discloses this incident. 7. PW4 Bhawna Bisht is scribe of the FIR. In cross-examination, she has stated that the complainant is known to her from 3-4 years. She stated that she is a social worker. She is expert in writing First Information Report. She has also stated that she has written some complaint at the request of complainants. 8. PW5 Vijay Prakash, Sub Inspector is Investigating Officer of the case. He has conducted the investigation of the case and has submitted the charge sheet. 9. PW6 Constable Jitendra Singh is a formal witness, who, on the basis of FIR, has prepared the Chik F.I.R. and made entry thereof in the G.D. 10. PW7 Dr. Babita Joshi is the main witness, who has conducted medical examination of the prosecutrix and has prepared the medical report. In her testimony, she has stated that no internal or external injury was found on the body of the prosecutrix. There was no discharge and bleeding was also not present. In the medical report, the doctor opined that no definite opinion can be given about sexual assault, as no dead or alive spermatozoa found, but possibility of rape cannot be ruled out. In her cross examination, she accepted the suggestion of the defence that if the prosecutrix was subjected to sexual assault forcibly, then certainly there would be the sign/mark of swelling, scratch or abrasion on the private part of the prosecutrix. 11. PW8 Shirish Bhatt, Chief Office Assistant of the Government Inter College has stated in the transfer certificate of the prosecution, the date of birth of the prosecution is 13.6.2000.The incident took place on 28.9.2013. 12. Thereafter, oral and documentary evidence was put to the accused under section 313 Cr.P.C in the form of questions, in reply to which he pleaded that he is innocent and has been falsely implicated in the said case. However, the accused did not adduce any evidence in his defence. 13. The trial court, after hearing the parties and appraisal of evidence, by the impugned judgment and order, convicted and sentenced the accused/appellant, as above. 14. I have heard learned counsel for the parties and perused the entire record. 15. Ms. However, the accused did not adduce any evidence in his defence. 13. The trial court, after hearing the parties and appraisal of evidence, by the impugned judgment and order, convicted and sentenced the accused/appellant, as above. 14. I have heard learned counsel for the parties and perused the entire record. 15. Ms. Anjali Bhargava, learned Amicus Curiae for the appellant submits that the appellant has not committed any crime, as projected by the prosecution. According to her, learned trial court has passed the impugned judgment and order without proper appraisal of evidence. I find some force in the submissions made by learned Amicus Curiae, due to following reasons: (i) The alleged incident happened on 28.9.2013 whereas the FIR was lodged on 4.10.2013 after a delay of 5-6 days of the incident and no plausible explanation has been given for the same by the prosecution. (ii) PW1 the complainant, PW2 prosecutrix and PW3 brother of the prosecutrix deposed in their statements that the accused entered into their house by breaking the bolt of the door, but this fact was neither mentioned in the F.I.R. nor it was mentioned by the Investigating Officer during the course of investigation that he found the bolt broken. (iii) The offence punishable under Section 376 IPC and Section 4 POCSO Act are serious in nature. According to the date of birth certificate, the age of the prosecutrix was about 13 years and 2 months. As per the radiological report, the prosecutrix was less than 15 years. As such, admittedly, prosecutrix was minor on the date of incident, but as per the prosecution witness Dr. Babita Joshi, medical officer who conducted medical examination of the prosecutrix, there was no mark of injury, redness, swelling, scratches, abrasion on the private part of the girl, nor any external injury was found on the body of the prosecutrix. (iv) The accused was not medically examined; however, it was the bounden duty of the Investigating Officer to get the accused medically examined, especially in case of rape with a minor girl. (v) The statements of PW1 Complainant, PW2 prosecutrix, PW3 minor brother of the prosecutrix are not supported by the medical evidence. According to Doctor Babita Jsohi there was no sign of injury on the private part of the prosecutrix. (v) The statements of PW1 Complainant, PW2 prosecutrix, PW3 minor brother of the prosecutrix are not supported by the medical evidence. According to Doctor Babita Jsohi there was no sign of injury on the private part of the prosecutrix. In her cross-examination, this witness has admitted that if rape would have been committed with the prosecutrix then there would be injury mark, redness, scratches and wound on the private part of the prosecutrix, but not a single injury, either internal injury or external, was found on the body of the prosecutrix. It is true that medical support is not necessary in any case of rape, but when the rape is being alleged to have been committed with a minor girl, the same possibility cannot be ruled out. 16. Having re-appreciated the entire evidence on record, I am of the considered view that the prosecution has not disclosed the true genesis of the crime and has thus miserably failed to prove the case beyond reasonable doubt against the appellant under Sections 376, 452 and 506 of IPC. 17. For the reasons recorded above, the appeal is allowed. Impugned judgment and order dated 28.08.2014 passed by Sessions Judge, Nainital, is hereby set aside. Appellant Chinta Ram @ Chintu is in jail. Let him be released forthwith, if not required in any other case. Let information to this effect be immediately sent to the Superintendent of Jail where appellant Chinta Ram alias Chintu is currently serving out the sentence. 18. Let a copy of the Judgment be sent to the court concerned for compliance as above. Lower court record be also sent back.