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2019 DIGILAW 200 (UTT)

Harish Chandra v. State of Uttarakhand

2019-03-14

ALOK SINGH

body2019
JUDGMENT : 1. Present appeal is filed against the judgment and dated 24.06.2016/28.06.2016 passed by Special Judge, POCSO Act, Haldwani, Nainital in Special Trial No. 16 of 2015 whereby accused appellant was convicted for the offence punishable under Section 376 (1), 342, 506 IPC and sentenced to undergo rigorous imprisonment of 8 years and to pay fine of Rs. 10,000/- and in default, to undergo further imprisonment of two months under Section 376 (1) IPC; to undergo imprisonment of 1 year under Section 342 IPC; and to undergo rigorous imprisonment of 3 year under Section 506 IPC. 2. Brief facts of the present case are that father of the prosecutrix lodged an FIR in Patti Goniyaro, Tehsil Dhari, District Nainital on 11.05.2015 to the effect that her daughter was studying in Class 9. On 10.05.2016, her daughter went to attend a marriage function in the neighbourhood. Her daughter along with one Deepa went to take wood at about 02.00 p.m. from the nearby house. Accused Harish followed them. Harish forcefully took the prosecutrix in his room and raped her. Kumari Deepa fled from the spot. Her daughter informed him about the incident in the evening. Accordingly, he approached the revenue police and requested him to take appropriate action against the accused. 3. Police investigated the matter and submitted the charge-sheet against the accused appellant. After committal of the case to the court of Special Judge, POCSO Act, learned trial court was pleased to frame charges under Section 342, 376 (2), 506 IPC and 3/4 of the Prevention of Children from Sexual Offences Act, 2012. Appellant denied the charges and claimed trial. 4. In order to prove the prosecution case, PW1 father of prosecutrix - informant, PW2 Prosecutrix, PW3 Mother of prosecutrix, PW4 Dr. Pallavi Chauhan, who conducted medical examination of the prosecutrix, PW5 G.P. Maurya, Incharge Principal, GIC, Chakdoba where prosecutrix was studying, PW6 Ganga Dutta Paldiya, Revenue Sub Inspector; PW 7 Rewati Pant, Sub Inspector, PW8 Ravinder Kumar, Investigating Officer were examined. Thereafter, statement of appellant was also recorded under Section 313 Cr.P.C. 5. Having heard learned counsel for the parties and perusing the entire material available on record, trial court was pleased to pass the impugned judgment and order. Feeling aggrieved, appellant has preferred the present appeal. 6. I have heard Mr. Kishore Kumar, learned counsel for the appellant, Ms. Thereafter, statement of appellant was also recorded under Section 313 Cr.P.C. 5. Having heard learned counsel for the parties and perusing the entire material available on record, trial court was pleased to pass the impugned judgment and order. Feeling aggrieved, appellant has preferred the present appeal. 6. I have heard Mr. Kishore Kumar, learned counsel for the appellant, Ms. Pushpa Bhatt, Deputy Advocate General for the State and have carefully perused the record. 7. Prosecutrix PW2 in her statement recorded under Section 164 Cr.P.C. as well as in statement made during trial, has stated that accused did vaginal sex with her, as a result of which, blood also oozed out. 8. PW4 Dr. Pallavi Chauhan medically examined the prosecutrix. She did not find any sign of rape or sexual assault. There was no mark of injury either on internal or external part of prosecutrix was not sent for forensic examination, therefore, there is no report regarding that. Reasons for not sending undergarment of the prosecutrix for forensic examination are best prosecutrix. She found hymn was ruptured but not due to alleged rape. She was unable to inform the time of rupture of hymn. She further submitted that hymn can be ruptured for various reasons. Clothes of prosecutrix were sent for forensic examination to FSL. But FSL report did not indicate any sign of sexual assault or rape. It is pertinent to mention here that undergarment of the known to the prosecution. 9. There is only one eye witness of the incident i.e. Kumari Deepa but prosecution had failed to produce her as witness. There were houses in the vicinity of place of occurrence including the house where marriage was going to be solemnized. There must be a lot of hustle and bustle near the place of occurrence but prosectrix did not raise any alarm. Therefore, allegations of prosecutrix appear to be doubtful. 10. I have also gone through the documentary evidence and statements of other witnesses, but nothing material came out to prove the prosecution beyond reasonable doubt. 11. The trial court convicted the accused appellant under Section 376 (1) IPC solely on the ground that accused inserted his finger into the vagina of prosecutrix whereas prosecutrix had neither stated in the statement recorded under Section 164 Cr.P.C. nor during the course of trial that accused inserted his finger into her vagina. 11. The trial court convicted the accused appellant under Section 376 (1) IPC solely on the ground that accused inserted his finger into the vagina of prosecutrix whereas prosecutrix had neither stated in the statement recorded under Section 164 Cr.P.C. nor during the course of trial that accused inserted his finger into her vagina. She only stated that accused did vaginal sex which is not proved. 12. In view of the above discussion, appeal is allowed. Impugned judgment and order dated 24.06.2016/28.06.2016 is hereby set aside. Appellant is acquitted of the charges levelled against him. Appellant is in jail. Let he be released forthwith, if not wanted in any other case. Let copy of this judgment be sent to court below for compliance along with lower court record.