Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 396 (UTT)

State of Uttarakhand v. Ayush Kathait

2023-07-07

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

body2023
JUDGMENT : PANKAJ PUROHIT, J. 1. Heard learned counsel for the parties. 2. This application for seeking leave to appeal has been preferred by the State of Uttarakhand against the judgment and order dated 06.06.2022 passed by the Children Court/District and Sessions Judge, Tehri Garhwal in Special Session Trial No. 02 of 2019, State vs. Ayush Kathait (Juvenile-in-Conflict with law), whereby the respondent/accused has been acquitted of the charges leveled against them under Sections 376(2)(n) and 506 of IPC. 3. The case of the prosecution initiated when a First Information Report Ext. Ka-1 was given by the victim to the Naib Tehsildar, Tehsil Balganga-Ghansali, District-Tehri Garhwal, stating therein that Shri Ashish S/o Shri Shishpal, Shri Rukam Singh S/o Shri Kedar Singh and Ayush Kathait S/o Shri Mohan Singh Kathait, respondent/accused, are residents of village Dhansani, had forcibly made sexual relationship with her for a period of two years and threatened her with life, if she disclosed it to anyone. It was also narrated in the First Information Report that on 21.12.2017, victim became mother of their child; she requested to take stern action against the respondent/accused and other accused persons named in the First Information Report. 4. On the basis of the aforesaid First Information Report (Ext.Ka-1), a Case Crime No. 01 of 2018, under Sections 376, 506 IPC was registered against the respondent/accused Ayush Kathait and two other co-accused persons, namely, Ashish and Rukam Singh, on 17.02.2018 at about 02:00 PM. The Chick FIR is exhibited as Ext.Ka-10 on the record. 5. After registration of the crime, the investigation was transferred to the Regular Police, vide letter no. 206/20-67 dated 22.02.2018 of the District Magistrate, Tehri Garhwal. After investigation, charge-sheet was submitted against accused Rukam Singh under Sections 376 and 506 of IPC in the Court of Chief Judicial Magistrate, Tehri Garhwal and since, the other co-accused were juvenile, the charge-sheet was submitted against respondent/accused Ayush Kathait and co-accused Ashish under Sections 376 and 506 of IPC in the Court of Juvenile Justice Board, Tehri Garhwal. 6. After investigation, charge-sheet was submitted against accused Rukam Singh under Sections 376 and 506 of IPC in the Court of Chief Judicial Magistrate, Tehri Garhwal and since, the other co-accused were juvenile, the charge-sheet was submitted against respondent/accused Ayush Kathait and co-accused Ashish under Sections 376 and 506 of IPC in the Court of Juvenile Justice Board, Tehri Garhwal. 6. Since, the respondent/accused (Juvenile-in-Conflict with law) was more than 16 years of age and less than 18 years, the Juvenile Justice Board, Tehri Garhwal, after making a preliminary assessment under Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2015, remit his case to the Children Court, Tehri Garhwal, under Section 18(3) of the said Act, for his trial as an adult. So far as the third accused person named in the FIR Ashish is concerned, he was less than 16 years of age, on the date of alleged commission of crime, it is reflected from the record that inquiry in respect of him was conducted by the Juvenile Justice Board in Case No. 23 of 2018 and the same has been disposed off vide judgment and order dated 17.12.2021, passed by the learned Juvenile Justice Board, Tehri Garhwal. It is also reflected from the record that the only accused-Rukam Singh, who was an adult on the date of the alleged commission of crime, was tried by the Special Judge (POCSO)/District and Sessions Judge, Tehri Garhwal in Special Sessions Trial No. 24 of 2018, which has also been disposed off by the learned trial court vide judgment and order dated 06.06.2022, acquitting him of the charges. 7. Here, in this appeal filed by the government against acquittal, we are concerned with the acquittal of Ayush Kathait, who was acquitted by the learned Children Court/District and Sessions Judge, Tehri Garhwal, by the impugned judgment and order under appeal. 8. The Juvenile Justice Board, Tehri Garhwal, after supplying the copy of the documents under Section 207 of Cr.P.C. remitted the case of the respondent/accused for trial to the Children Court, Tehri Garhwal, which was registered as Special Sessions Trial No. 02 of 2019 on 01.02.2019 in the Children Court. 9. On 10.06.2019, learned trial court framed charges against the respondent/accused under Sections 376(2)(n) and 506 of IPC, who pleaded not guilty and prayed for his trial. 10. 9. On 10.06.2019, learned trial court framed charges against the respondent/accused under Sections 376(2)(n) and 506 of IPC, who pleaded not guilty and prayed for his trial. 10. During the course of the trial in order to substantiate its case against the respondent/accused, the prosecution examined PW-1 the victim, PW-2 Shri Dev Singh (father of the victim), PW-3 Dr. Chandra Prakash Tripathi, PW-4 Dr. Vandana Sethi, PW-5 Shri Vinod Nath and PW-6 S.I. Himani Panwar. Apart from that, documentary evidence was also brought on record by the prosecution. 11. From the record, it is also reflected that blood sample of respondent/accused Ayush Kathait, victim and the baby was also taken. 12. The respondent/accused was examined under Section 313 of Cr.P.C. wherein, he stated that victim and he and the other co-accused persons are brother and sister and a false case was instituted against him. In his defense, he filed certified copy of the judgment and order dated 17.12.2021, passed by the Juvenile Justice Board, New Tehri, in Case No. 23 of 2018, Paper No. 129Ka/1 to 129Ka/15 and by making an endorsement on the order-sheet on 12.05.2022 endorsed that he do not want to produce any other defence evidence. 13. Learned trial court after hearing the parties and appreciating the evidence available on record, together with the documentary evidence, reached to the conclusion that the prosecution failed to prove the charges leveled against the respondent/accused and accordingly, acquitted the respondent/ accused for the offence under Sections 376(2)(n) and 506 of IPC. Hence, this Government Appeal has been filed by the State Government. 14. Learned trial court while acquitting the respondent/accused, relied upon the xviii (18) important facts while recording the finding of acquittal. 15. It is noted by the learned trial court in its judgment and order that on 12.02.2020, when the evidence of victim was recorded in the court, she told her age 23 years. According to this fact, when the alleged rape was committed upon her for the last two years, i.e. since February, 2016, the age of the victim comes about 19 years; it has also been noted that a baby girl was born to her on 21.12.2017. According to this fact, when the alleged rape was committed upon her for the last two years, i.e. since February, 2016, the age of the victim comes about 19 years; it has also been noted that a baby girl was born to her on 21.12.2017. As per the First Information Report, she did not know who the father of the baby girl was; in her statement under Section 164 of Cr.P.C. recorded on 14.05.2018, she also stated that the baby girl is of anyone of the three accused persons. In her statement under Section 164 of Cr.P.C. she narrated that all the accused persons including the respondent/accused, used to bring juice, apple and papaya for her and after taking these, she fell unconscious and all three persons used to commit foul act with her. But, this fact was found totally missing in her statement under Section 161 of Cr.P.C. 16. A very important fact has been noted by the learned trial court that as per the DNA sample report (Ext. Ka-19), the biological father of the daughter of the victim was the Juvenile-in-Conflict with law, whose trial was held before the Juvenile Justice Board. The date of birth of Juvenile-in-Conflict with law is 28.09.2004 and according to it, during the incident in 2016, he would be 12 years of age. This was also noticed by the learned trial court that before the Juvenile Justice Board in Case No. 23 of 2018, it was stated by the victim ^^;g dguk lgh gS fd u vk’kh”k dks irk Fkk vkSj u eq>s irk Fkk] uknkuh esa cPpk gks x;kA** “It is correct to say that neither Ashish nor did I know, the child was born out of ignorance.” There is one more relevant fact, which has been relied upon by the learned trial court with regard to the fact that the child was born in Sethi Clinic, Rishikesh on 21.12.2017 to the victim and on the certificate issued by Dr. Vandana Sethi (Ext.Ka-9), who was examined as PW-4, the name of the husband of the victim was mentioned Juvenile-in-Conflict with law, whose trial was held before the Juvenile Justice Board and thus, on 21.12.2017, it was known to her that who was the father of the baby girl, but the same was not disclosed for reasons best known to her in the First Information Report (Ext.Ka-1). 17. The evidence of PW-4 Dr. 17. The evidence of PW-4 Dr. Vandana Sethi was very relevant, who asserted this fact that the victim told her to be the wife of the Juvenile-in-Conflict with law, who was tried before the Juvenile Justice Board. PW-4 however narrated that the victim did not complain about the rape, PW-4 went on to say that even the people who came with the victim did not say that the victim was raped and was conceived due to rape, if it had been disclosed to her, she stated that she would definitely informed the police regarding this. 18. On appreciation of the evidence, the learned trial court acquitted the respondent/accused. 19. Heard learned Deputy Advocate General, who strenuously would submit that the learned Children Court/District and Sessions Judge, Tehri Garhwal misinterpreted the evidence available on record and thereby, wrongly acquitted the accused Ayush Kathait, on the ground of material contradictions in the evidence, particularly, the evidence of PW-1. He also argued that it is true that the biological father of the baby girl born to the victim was Juvenile-in-Conflict with law, whose trial was conducted before the Juvenile Justice Board, Tehri Garhwal and not the respondent/accused, as per DNA Report, but, it was submitted by him that DNA test is a corroborative piece of evidence and therefore, only on relying upon the DNA test report, the respondent/accused could not be acquitted. It is further submitted by him that the victim PW-1 and her father PW-2, fully supported the case of the prosecution. 20. By relying upon the evidence of PW-1 and PW-2, the learned D.A.G. strongly submitted that the prosecution has proved its case beyond all reasonable doubts against the respondent/accused Ayush Kathait. 21. Per contra, learned Advocate for the respondent/ accused supporting the impugned judgment submitted that entire story put forth by the prosecution, is quite unbelievable when she says that for a period of two years, all the accused persons used to give her juice, apple and papaya, and after taking these items, she used to fell unconscious and thereafter, forcibly sexual assault was made upon her by all the accused persons including the respondent/accused. He drew the attention of this Court on the evidence of PW-4 and argued that when the baby girl was born in the hospital of PW-4 Dr. He drew the attention of this Court on the evidence of PW-4 and argued that when the baby girl was born in the hospital of PW-4 Dr. Vandana Sethi, it was never disclosed to her that the victim was subjected to forcible sexual relationship i.e. raped by the accused persons, rather, the name of the father of the girl child was given by the victim i.e. Juvenile-in-Conflict with law, whose trial was conducted before the Juvenile Justice Board, Tehri Garhwal and not of the respondent/accused. 22. Apart from this, it was also brought to notice of this Court by the learned Advocate for the respondent/accused that the respondent/accused was minor while the victim was major on the date of the alleged incident. There are various contradictions in the evidence of victim and owing to this reason, it cannot be said to be inconsistent and incredible. It is also brought to the notice of this Court that even the mother of the victim, who would be an important witness due to the reason that victim was living with her, but the prosecution did not bring her to the witness box. With these submissions, he supported the judgment of acquittal. 23. We have given a thoughtful consideration to the submissions made by the learned counsel for the parties and have gone through the evidence of PW-1 victim, PW-2 father of the victim, especially PW-4 Dr. Vandana Sethi, in whose hospital the baby girl was born on 21.12.2017, and other witnesses, including the documentary evidence, especially the DNA Report. 24. On the basis of the material available on record, it can be safely inferred that the prosecution failed to prove its case beyond all reasonable doubts against the respondent/accused. The important facts culled out by the learned trial court, out of the evidence available on record, on the basis of which, the judgment of acquittal was recorded, only indicate towards the innocence of the respondent/accused and he has been fairly acquitted by the impugned judgment and order. 25. At this stage, it would be relevant to mention that the acquittal of the respondent/accused makes his innocence proved twice and as enunciated by the Hon’ble Apex Court time and again that unless and until compelling reasons are there, i.e. perversity writ large from the impugned judgment and order, the judgment and order of acquittal should not be inferred with. 26. 26. Learned D.A.G. could not bring to our notice any such perversity, which warrant our interference. 27. In this view of the matter, we do not find any merit in the application for seeking leave to appeal and the same is liable to be rejected. 28. We are not inclined to grant leave to appeal, accordingly, the application for seeking leave to appeal is hereby rejected. 29. Consequently, the Government Appeal No. 110 of 2022 stands dismissed.