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2019 DIGILAW 505 (UTT)

SAJID v. STATE OF UTTARAKHAND

2019-09-18

LOK PAL SINGH

body2019
JUDGMENT Hon'ble Lok Pal Singh, J. This criminal jail appeal is directed against the judgment and order dated 16.02.2018 passed by Fast Track Court/Special Judge (POCSO)/Additional Sessions Judge, Dehradun, in Special Sessions Trial No. 28 of 2014, whereby the accused/appellant has been convicted under Sections 363, 366A, 376 of The Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012, and has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.30,000/- u/s 4 of POCSO, R.I. for three years along with a fine of Rs. 5,000/- u/s 366A of IPC and R.I. for two years along with a fine of Rs.2,000/- u/s 363 IPC. All the sentenced were directed to run concurrently. 2. Prosecution story, in brief, is that PW1 complainant (name withheld) submitted a written report at P.S. Cantt, Dehradun stating that his daughter, who is aged about 16 years, was enticed away by the appellant Sajid on 20.05.2014. On 21.05.2014, when his daughter came back she told the said incident and also disclosed that the appellant committed rape with her. On the basis of written report, Chik F.I.R. was prepared and case crime no.36/2014 was registered against accused/appellant under Sections 363/366/376 IPC and 8/18 of POCSO. The matter was investigated. During the course of investigation, the victim was got medically examined; x-ray of the victim was conducted for age verification; statement of victim was recorded u/s 164 of Cr.P.C; accused/appellant was arrested by the police; undergarments of the victim as well as that of the accused were taken into possession; site-plan of the place of incident was prepared. On completion of investigation, charge-sheet was filed against the accused/appellant in the court, for his trial, under the aforesaid Sections. 3. On 17.7.2014, Special Judge framed charge of offence punishable under Sections 363, 366-A, 376 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. 4. The prosecution, in order to prove its case, got examined as many as seven prosecution witnesses viz. PW1 complainant and father of the victim, PW2 mother of victim, PW3 Dr. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 4. The prosecution, in order to prove its case, got examined as many as seven prosecution witnesses viz. PW1 complainant and father of the victim, PW2 mother of victim, PW3 Dr. Vinita, Medical Officer, who conducted medication examination of the victim, PW4 prosecutrix, PW5 Constable Anita Bangari, PW6 Sub Inspector Naresh Singh Rathore and PW7 Sub Inspector Preeti Sharma. 5. Thereafter, statement of the accused/appellant was recorded under Section 313 of Cr.P.C. in the form of questions and answers. In reply to questions posed under Section 313 of Cr.P.C., the accused replied that he has been falsely implicated in the instant case. In reply to question no.13, he replied that due to some hot talks between Ashok Negi, Village Pradhan and him, he has been falsely implicated in the instant case. However, he did not lead any evidence in his defence. 6. The Trial Court, after hearing the parties and on perusal of evidence, convicted and sentenced the accused/appellant, as stated above. 7. I have heard learned counsel for the parties and have carefully perused the entire record. 8. Learned Amicus Curiae, appearing on behalf of the appellant, would submit that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. He would submit that the appellant has been falsely implicated in the case at the instance of Village Pradhan. He would further submit that the medical evidence does not support the prosecution case. 9. Per contra, learned Deputy Advocate General has supported the judgment and order passed by the trial court. 10. PW1 complainant/father of the victim (name withheld) has deposed that the victim is aged about 16 years. On 20.5.2014, his daughter had gone to school but did not came back. They tried to search her but to no avail. Next day at about 11 am, his daughter came back and told her mother that she was enticed away by theappellant. She further disclosed that the accused had threatened to kill her family. This witness produced the birth certificate of the victim showing her date of birth as 5.5.1998. 11. PW2 mother of the victim has corroborated the statement of PW1 and has supported the prosecution case. 12. PW3 Dr. Vinita has medically examined the victim on 22.05.2014. She further disclosed that the accused had threatened to kill her family. This witness produced the birth certificate of the victim showing her date of birth as 5.5.1998. 11. PW2 mother of the victim has corroborated the statement of PW1 and has supported the prosecution case. 12. PW3 Dr. Vinita has medically examined the victim on 22.05.2014. Regarding the age of victim, she had advised for x-ray. This witness has proved the medical report Ext. A2. 13. PW4 the victim (name withheld) has deposed that on the date of incident she was studying in class-X and was aged about 16 years. Accused/appellant got her mobile number through her friend. He used to ask her to meet him and on her refusal, he used to torture her saying that he will commit suicide in front of her house and will falsely implicate her entire family. On 20.5.2014 at about 7-8 am, appellant made a call to her and asked her to meet him, otherwise he will commit suicide. When she was going to her school, accused met her on the way and enticed her away. He boarded her on a bus going towards Vikasnagar. She was escorted by the appellant on motorcycle. She stated that he took me off the bus and took her in a hotel. Accused took a room in the hotel and ordered food. He asked her to have food to which she refused. Thereafter, he removed her clothes. He removed his clothes also, and committed rape with her. After one and half hour, she was taken to Vikasnagar by the accused on motorcycle. He showed his house to her and thereafter he took her to a Maulvi and asked for marriage. She refused to marry him. Thereafter, the accused took her to an advocate, who told her whether she wants to marry with him. She told him that she is not ready to marry him. On being asked, she disclosed to the advocate that she is minor. After that she was again taken to the same hotel where the accused stayed her for the whole night and asked her to go home tomorrow. In night also, accused forcibly committed rape with her. In the morning, she managed to escape from the hotel and reached her house. She narrated the entire incident to her mother whereafter her father lodged the FIR. 14. In night also, accused forcibly committed rape with her. In the morning, she managed to escape from the hotel and reached her house. She narrated the entire incident to her mother whereafter her father lodged the FIR. 14. PW5 Constable Anita Bangari is a formal witness, who has prepared the Chik FIR. 15. PW6 Sub Inspector Naresh Singh Rathore is also a formal witness. On the information received through an informant, he alongwith the policy party had arrested the accused. 16. PW7 Sub Inspector Preeti Sharma is investigating officer of the case. 17. On a thoughtful consideration of the entire record, it transpires that on 20.5.2014 when the prosecutrix was going to her school, accused met her and enticed her away. The prosecutrix, who was minor on the date of incident, was taken to a hotel by the appellant where he sexually assaulted her. Record reveals that from a long time, accused was chasing the appellant and was creating pressure on her to marry with him and was threatening her that if she would not meet her he would commit suicide in front of her house and will implicate her family. In this regard, the prosecutrix has made categorical statement before the Magistrate u/s 164 Cr.P.C. as well as in the statement recorded before the trial court. In her cross-examination before the trial court, nothing could be elicited, which may create any doubt on her testimony. The statement of the prosecutrix is natural, trustworthy and inspires confidence. 18. As regards the contention that the medical evidence does not support the ocular evidence, although PW 3 Dr. Vinita has not given any definite opinion about rape and has deposed that the hymen of the victim was intact and there was no sign of external injury nor there was any discharge or bleeding, the fact of the matter is that the opinion of the doctor is not conclusive. It is a trite law that when there is a contradiction between the medical evidence and ocular evidence, primacy has to be given to ocular evidence. In the case at hand, there is no reason to disbelieve the testimony of the prosecution. The evidence of the prosecutrix is reliable and trustworthy. Besides this, the prosecution case further finds supports from the examination report received from the Forensic Science Laboratory. In the case at hand, there is no reason to disbelieve the testimony of the prosecution. The evidence of the prosecutrix is reliable and trustworthy. Besides this, the prosecution case further finds supports from the examination report received from the Forensic Science Laboratory. The undergarments of the victim and the accused were taken into possession by the police and were sent to Forensic Science Laboratory, Dehradun for chemical examination. Report Ext.19 is the examination report which clearly indicates that semen was detected on Exhibit-1 and 2 i.e. the underwear of victim and accused, respectively. 19. Insofar as the contention raised by learned Amicus Curiae that the appellant has been falsely implicated in the case at the instance of Village Pradhan Ashok Negi is concerned, the appellant has not lead any evidence in defence in this regard. In such type of cases, no parent will put the girl or its family reputation at stake by leveling a false charge. Thus, the contention raised by the counsel in this regard is not maintainable. 20. Having re-appreciated the entire evidence on record and after hearing learned counsel for the parties, this Court is of the considered view that the prosecution has been successful in proving its case against the accused/appellant under the aforesaid Sections. That being so, the Trial Court has rightly convicted and sentenced the appellant for the offences under which he was charged. There is no reason for this Court to interfere with the well-reasoned judgment of the Trial Court. 21. For the reasons recorded above, the appeal fails and the same is hereby dismissed. Appellant isalready in jail. He shall serve out the sentence, so imposed against him by the Trial Court. 22. A copy of this judgment and order along with the LCR be sent to the Court concerned with the direction to inform the appellant about the fate of his appeal.