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2023 DIGILAW 351 (UTT)

Narendra Singh Negi v. State of Uttarakhand

2023-06-07

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

body2023
JUDGMENT : Pankaj Purohit, J. This Appeal is preferred by the appellant from Jail assailing the judgment and order dated 20.01.2021, passed by learned FTC/ADJ/Special Judge/POCSO, Udham Singh Nagar in Special Sessions Trial No.437 of 2019, whereby the appellant has been convicted under Section 6 of the Protection of Children From Sexual Offences Act, 2012 and sentenced to undergo life imprisonment with fine of Rs.30,000/- and, in default of fine, he was sentenced to undergo six months’ additional simple imprisonment. He has also been convicted under Section 363 IPC and sentenced to undergo three years’ rigorous imprisonment with fine of Rs.5,000/- and, indefault of fine, he was sentenced to undergo one month additional simple imprisonment. He has further been convicted under Section 366 IPC and sentenced to undergo five years’ rigorous imprisonment with fine of Rs.10,000/- and, in default of fine, he was sentenced to undergo two months’ additional simple imprisonment. He has further been convicted under Section 506 IPC and sentenced to undergo one year rigorous imprisonment with fine of Rs.500/- and, in default of fine, he was sentenced to undergo fifteen days’ additional simple imprisonment. It was directed that all the sentences shall run concurrently. 2. The facts of the case in brief are that on 29.09.2019, an FIR was lodged by father of the victim with the allegations that his daughter aged about 13 years went to collect the wooden powder from the furniture shop in Chandipur owned by appellant. The appellant raped the daughter of informant inside the showroom and threatened her to life, if she discloses it to someone. Due to threat given by the accused, his daughter did not disclose it in the family. On 28.09.2019, his daughter disclosed that she was pregnant and it was consequence of being raped by the accused many times. 3. The Investigating Officer conducted the investigation of the case and after doing necessary formalities and arresting the accused, submitted a charge-sheet (Ext.Ka-8) against the accused (appellant herein) in the court. The blood sample of the victim as well as that of accused-appellant was sent for chemical examination. The report given by the concerned FSL is on record as (Ext.Ka-10). 4. The trial court, finding sufficient grounds, framed charges against the accused-appellant on 08.01.2019 under Sections 366, 376(2)(h), 506 of IPC and Section 5(q)/6 of the POCSO Act. 5. The blood sample of the victim as well as that of accused-appellant was sent for chemical examination. The report given by the concerned FSL is on record as (Ext.Ka-10). 4. The trial court, finding sufficient grounds, framed charges against the accused-appellant on 08.01.2019 under Sections 366, 376(2)(h), 506 of IPC and Section 5(q)/6 of the POCSO Act. 5. As many as eight witnesses were produced by the prosecution to prove its case against the appellant to the hilt. They are PW1 (victim), PW2 (mother of victim), PW3 (father of victim), PW4-Reena Johri, Principal of School for proving the victim’s age, PW5-Dr. Tanuja Sinha, PW6 & 8-SI Surbhi Badoi and PW7-Dr. Akhilesh (Radiologist). 6. Thereafter, the statement of accused-appellant was recorded under Section 313 Cr.P.C. in which he denied the allegations levelled against him. 7. The trial court on conclusion of trial, found the case to be proved against the accused-appellant beyond all reasonable doubt and it accordingly proceeded to convict and sentence the accused-appellant as mentioned in paragraph no.1 of this judgment. 8. We have heard learned counsel for the either party and perused the entire oral and documentary evidence available on record. 9. To prove its case, the prosecution produced the victim as PW1 in the court. She deposed that her date of birth is 10.02.2007. She is Class-V passed out from a Government School in District Udham Singh Nagar. She deposed that in the month of March, 2019 while she was standing outside on her door appellant waved a signal by his hand and called her to his shop on the pretext of taking wooden powder. She went to the shop since in the past also her parents used to collect wooden powder from his shop. She has further stated that the accused appellant offered her a cup of tea. On his resistance, she consumed the tea and thereafter, lost her consciousness. When she regained her senses, she was lying naked. She was having pain in her private part and after becoming conscious, she noticed the bleeding. There was injury on her leg and the blood was coming out. There was injury on the neck also and blood was also coming from there. She was crying with pain and after wearing the clothes, said to the accused that she will tell it to her parents. There was injury on her leg and the blood was coming out. There was injury on the neck also and blood was also coming from there. She was crying with pain and after wearing the clothes, said to the accused that she will tell it to her parents. On this the accused threatened to kill her and her parents, if she discloses it to them. She was frightened by the threat of the accused and after going home she did not tell anything to her parents. On the next day of this incident, when her parents were not at home, the accused came to her house, threatened and took her to his shop. In the shop he took her behind the machine where he forcibly raped her. The accused inserted his private part into her. The accused kept doing this with her for one month. 10. Whenever she used to go to the shop for bringing something the accused used to keep threatening and calling her where he used to forcibly rape her. Whenever she went to the school, then while coming from the school, he used to make her sit on the scooty. On being refused by her, he used to threaten her that 'u know what can I do’. She restrained the appellant not to do it, whenever he raped her. 11. When her mother noticed changes, she enquired and then she (PW1) narrated the entire incident to her that the accused Narender Singh Negi raped heragain and again and threatened to kill her. Her mother informed about it to her father, who then went to the police station to report the matter. Her medical examination was done in the Govt. Hospital. It was found in the Ultrasound that she was pregnant. A baby boy was born from her womb in Sushila Tiwari Hospital, Haldwani. 12. PW2 Mother of the victim deposed that she is uneducated and never went to the school. The victim is the only child and is 13 years old. She was born in second month of 2007. She doubted the enlarged womb of the victim. When she strictly asked her daughter, she informed about being raped many times by the accused. Then she informed about this fact to her husband, who then lodged the report in the police station. 13. The medical examination of the victim was done in the Govt. Hospital. 14. She doubted the enlarged womb of the victim. When she strictly asked her daughter, she informed about being raped many times by the accused. Then she informed about this fact to her husband, who then lodged the report in the police station. 13. The medical examination of the victim was done in the Govt. Hospital. 14. PW-3, father of the victim, deposed that the date of birth of his daughter-victim is 10-02-2007. She is the sole daughter, and at the time of the incident was studying in the class 5. She and her wife are working in a board factory. Last year, on 28th September his wife told him in the day that the victim was pregnant and when asked by her strictly, she told that in March, 2019 Narendra Singh Negi, who is having the furniture shop in front, called her in the evening to collect and take the wooden powder. At that time, there was nobody in the house. The victim also told that the accused also gave her tea to drink which she refused. But on insistence of appellant, she consumed it. After drinking it she became unconscious, and thereafter, the accused forcibly rapedher. The victim also told that the accused had raped her many times in his shop, when she used to return from the school. The accused would pick her on one pretext or other and, instead of bringing her home forcibly took her to his shop, where he forcibly used to rape her. Because of being raped by the accused, she became pregnant. 15. PW4 Smt. Reena Johari is the Principal of Government School, Netajinagar, Dineshpur, District Udham Singh Nagar. She has proved that the victim was admitted in the said school on 29.11.2016 in Class 2. At the time of admission, her date of birth was got recorded by the parents of victim as 10.02.2007. She has also produced the date of birth certificate issued to the victim whereon Ext.Ka-4 was marked. 16. PW5 Dr. Tanuja Sinha is the medical officer who examined the victim brought by her mother. She deposed that on that day at 4.00 P.M., a lady constable brought the victim before her for medical examination. The victim was well conscious and oriented to the time and place. On the same day at 4.10 hours, the medical examination was started. At the time of medical examination, the victim was pregnant. She deposed that on that day at 4.00 P.M., a lady constable brought the victim before her for medical examination. The victim was well conscious and oriented to the time and place. On the same day at 4.10 hours, the medical examination was started. At the time of medical examination, the victim was pregnant. The victim told that the accused, who is her neighbour, has forcibly raped her. The hymen of the victim was torn. Since the victim was pregnant, therefore, she was advised for ultrasound and on internal examination, the victim appeared to be pregnant of 16-20 weeks. On 29.09.2019 at 4.43 hours in evening, the medical report of the victim was prepared in her hand writing which bears the seal of the hospital as Ext.Ka-5.17. PW6-SI Surbhi Badoi is the IO of the case. During the course of investigation, she obtained the date of birth certificate of the victim. She also sent the victim for ultrasound examination in which the victim was found to be having a live foetus of 23 weeks and 02 days. Thereafter, she submitted charge-sheet against the appellant. On 19.12.2019, the victim gave birth to a child in Sushila Tiwari Hospital. She has also proved about sending the blood sample of the victim, accused as well as that of newly born baby to FSL Dehradun. This witness was again summoned as PW8 where she has proved about receipt of report of FSL Dehradun which is Ext.Ka-10. 18. PW7 Dr. Akhilesh is the Radiologist, who, on the instructions of PW5 Dr. Tanuja Sinha, conducted ultrasound on the victim and found a living foetus in her womb. The victim’s age was about 13 years. He has proved the report as Ext.Ka-9. 19. Thereafter, the statement of appellant-accused under Section 313 Cr.P.C. in which the accused claimed innocence and pleaded false implication. He also stated that the parents of victim had taken Rs.20,000/- from him, and when he demanded his money back, he was implicated in this case. 20. We have carefully considered the submissions put forth on behalf of either party and examined the record of the case with their help. 21. Learned Amicus Curiae appearing for the appellant has argued that the prosecution has failed to prove its case against the appellant beyond all reasonabledoubt. 20. We have carefully considered the submissions put forth on behalf of either party and examined the record of the case with their help. 21. Learned Amicus Curiae appearing for the appellant has argued that the prosecution has failed to prove its case against the appellant beyond all reasonabledoubt. But on being quizzed by Court, the learned Amicus Curiae fairly admitted that DNA report on the record matched with that of the baby (Anurag) and appellant is the biological father of the baby (Anurag) as per the DNA report. 22. On the other hand, learned State Counsel by supporting the judgment rendered by the trial court, argued that it is a case in which the appellant committed rape upon a minor girl of 13 years for a number of times. Not only this, by such act of appellant, the victim, who is a girl child, got pregnant and she gave birth to a male child in such a tender age. The prosecution has tendered all cogent evidence and thus has duly proved its case against the appellant beyond reasonable doubt. 23. In this case, the victim was a Class-5 child at the time of incident. In order to prove the factum of age of victim, the prosecution produced PW4 Smt. Reena Johari, Principal of the School where the victim last studied. In unequivocal terms, she has stated that the date of birth of the victim was 10.02.2007, meaning thereby, the victim was about 13 years of age on the date of commission of crime. PW4 has also proved the certificate regarding date of birth of victim in her handwriting and signature whereon Ext.Ka-4 was marked. 24. So far as the argument regarding false implication of accused is concerned, the same is belied from a statement of victim, who appeared as PW1 in the dock of the court. She has stated before the court that on the date of incident, the appellant called her by waving a signal and offered her a cup of tea. Although, she refused to consume the same, but on the insistence of the appellant, she consumed it, and thereafter, she got unconscious. When she regained her senses, she found to be her naked and thereafter, the appellant committed rape upon her. Not only this, the appellant even threatened the victim to face dire consequences, in case, she discloses this incident to anyone. When she regained her senses, she found to be her naked and thereafter, the appellant committed rape upon her. Not only this, the appellant even threatened the victim to face dire consequences, in case, she discloses this incident to anyone. The victim has also stated that thereafter, whenever she visited the shop of appellant, he threatened and committed rape upon her. On noticing the changes in the body of victim, her mother inquired about the reason and then she narrated the entire pathetic tale. The victim thereafter gave birth to a male child in the Government Hospital on 19.12.2019. 25. To add further, the blood sample of accused, victim and that of newly born baby were sent for expert examination. The report given by the FSL Dehradun is on record as Ext.Ka-10, which concludes that the victim is the biological mother of the newly born baby (Anurag) and the appellant is the biological father of the said male child. Thus, it can safely be inferred that it is the appellant who committed the crime. 26. For the aforesaid reasons, we do not find any ground to interfere with the well reasoned judgment of the trial court in convicting and sentencing the appellant, as discussed above. 27. As a result, the appeal preferred by the appellant, being bereft of any merit is liable to be and is accordingly dismissed. The judgment and order under challenge is accordingly, affirmed. 28. The appellant is already in jail. He shall serve out the sentence, so awarded. Registry to send a copy of this judgment along with the LCR to the court concerned for information and compliance.