Uttarakhand High Court
Sushil Kumar vs State Of Uttarakhand on 7 October, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 543 of 2013
Sushil Kumar ....... Appellant
versus
State of Uttarakhand ....... Respondent
Mr. Kurban Ali, Advocate for the appellant.
Mr. Subhash Tyagi Bhardwaj, Dy. Advocate General for respondent State.
with
Criminal Appeal No. 544 of 2013
Narendra Singh ....... Appellant
versus
State of Uttarakhand ....... Respondent
Mr. Kailash Chand Tiwari, Advocate (Amicus Curiae) for the appellant
Mr. Subhash Tyagi Bhardwaj, Dy. Advocate General for respondent State.
and
Criminal Appeal No. 545 of 2013
Sanjay Kumar ....... Appellant
versus
State of Uttarakhand ....... Respondent
Mr. Kurban Ali, Advocate for the appellant
Mr. Subhash Tyagi Bhardwaj, Dy. Advocate General for respondent State.
U.C. Dhyani, J.(Oral)
Since the above-noted criminal appeals are directed against the conviction of the appellants from a common judgment and order dated 25.11.2013, therefore, 2 they are being decided together for the sake of brevity and convenience on the joint request of learned counsel for the parties.
2) Mr. Kurban Ali, has filed his Vakalatnama in criminal appeal CRLA no. 543 of 2013, Sushil Kumar vs State and CRLA no. 545 of 2013, Sanjay Kumar vs State. Mr. Kailash Chand Tiwari, Advocate, who was appointed Amicus Curiae by the Court, is assisting the Court on behalf of appellant Narendra Singh in CRLA no. 544 of 2013. It may be noted here that factual matrix of all the criminal appeals and the law governing the field is the same and, therefore, they are being disposed of together by this common judgment and order.
3) Appellants namely, Narendra Singh, Sanjay Kumar and Sushil Kumar were acquitted by the trial court for the charge of offence punishable under Section 363 IPC. Appellants Narendra Singh and Sushil Kumar were also exonerated of the charge under Section 376/511 IPC.
4) Appellant Sanjay Kumar has been convicted under Sections 376/511, 366, 342 IPC and was sentenced accordingly.
5) Appellant Narendra Singh and Sushil Kumar have been convicted under Sections 366, 342 IPC and were sentenced accordingly.
36) Aggrieved against their conviction and sentence, above-noted criminal appeals have been preferred by the appellants.
7) Criminal law was set into motion at the instance of S.I. Nar Ram Vishwakarma (PW1) by lodging FIR on 22.01.2013 against three accused persons, namely, Narendra Singh, Sushil Kumar and Sanjay Kumar for the offences punishable under Section 363, 366, 342, 376/511 IPC. The incident allegedly took place on 21.01.2013, at 11:00 P.M. FIR was lodged without causing delay after 2½ hours, on 22.01.2013.
8) Briefly put, prosecution story is that, when S.I. Nar Ram Vishwakarma (PW1) along with other police officials went for the search of kidnapped girl in his official vehicle and reached A.P.S. Panda Farm, they saw a vehicle parked there. On approaching the vehicle, the police personnel saw that a person was sitting in the driver's seat. Another person was trying to molest a girl. Two persons were patrolling the vehicle. One of the persons disclosed his name as Ramesh Singh r/o Nepal. The victim was also a resident of Nepal. Ramesh Singh told the police that the victim was his relative. At 09:00 P.M, when victim was going to Tharkot along with Ramesh Singh to visit her aunt, they were chased by three persons in a Max vehicle. Those miscreants dragged the victim and Ramesh Singh inside the vehicle on knife point and abducted them forcibly. When the police personnel reached there, the miscreants confessed their guilt and were arrested on the 4 spot. Recovery memo was prepared. On the basis of recovery memo, FIR was lodged. An entry was made in the General Diary. After investigation, a charge sheet was submitted against the accused-appellants for the offences punishable under Sections 363, 366, 342, 376/511 IPC. The case was committed to the court of Sessions for trial.
9) After charges were framed against the appellants for the selfsame offences, they pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 S.I. Nar Ram Vishwakarma (informant); PW2 Kala Rawat (victim); PW3 Ramesh Singh (another victim); PW4 Suraj @ Ravindra Singh Rawat; PW5 constable Dinesh Giri; PW6 Sanjay Kumar; PW7 Dr. Tara Baseda (Medical Officer); PW8 S.I. Vijaya and PW9 Manju Singh Munde, Judicial Magistrate, Pithoragarh. Prosecution documents were exhibited. After the conclusion of prosecution evidence, statements of the accused-appellants under Section 313 Cr.P.C. were recorded, in which they stated that they have been falsely implicated in the crime. No evidence was adduced in defence.
10) PW1 is the reporter, who set the criminal law into motion by lodging the FIR. In his examination-in- chief, PW1 supported the prosecution story and proved documents relied upon by the prosecution. According to PW1, besides the driver, two miscreants were sitting in the Max vehicle. One of the accused was making an attempt to molest the victim. Two persons were guarding the vehicle.
5The third person standing there disclosed his name as Ramesh Singh r/o Nepal. He told the police personnel that the victim was his relative. The victim was also a resident of Nepal. Victim stated that both of them were going to visit their aunt.
11) Victim also disclosed to PW1 that she and Ramesh Singh were dragged inside the Max vehicle forcibly. Another person disclosed his name as Sushil Kumar. The driver of the vehicle was Narendra Singh. The person sitting in the middle of the seat was Sanjay Kumar. All the three accused persons were arrested. Victim and Ramesh Singh were taken to the Medical Officer for their medical examination. The recovery memo contained the signatures of the accused persons as also of police personnel.
12) PW2 (victim), in her examination-in-chief, stated that on 21.01.2013, she was going with her fiancé Ramesh to her aunt's house at Tharkot. On 21.01.2013, at about 09:30 P.M., as soon as they reached Acholi, a white Max vehicle stopped near them. All the three accused persons were present inside the vehicle. Sanjay Kumar and Sushil Kumar dragged the victim and Ramesh Kumar forcibly inside the vehicle saying that they were armed with knives and guns and if they do not abide by their instructions, they will kill them. Both of them were abducted and thereafter the vehicle was parked at a secluded place. Accused Sushil dragged victim's fiancé Ramesh out of the vehicle. Ramesh was also assaulted by 6 accused Sushil. Accused Sanjay outraged the modesty of the victim and kissed her on her cheek. An altercation took place between them. Accused Sanjay and Narendra threatened the victim that if she did not abide by their instructions, they will kill Ramesh. Meanwhile, the police arrived there and arrested the accused persons. Before that, two accused persons were insisting the victim for maintaining physical relationship with them. Police reached on the spot at around 10-10:30 P.M. The victim was taken for medical examination the next day.
13) PW3, fiancé of the victim, in his examination- in-chief supported the prosecution story. PW3 identified the accused persons in the court stating that one of the accused slapped him. PW3 along with the victim were forcibly dragged inside the Max vehicle and taken to a secluded place. PW3 was taken out of the vehicle. The accused person sitting inside the vehicle outraged the modesty of PW3's would be wife. Meanwhile, the police came and arrested the accused persons. Injuries of PW3 were also medically examined.
14) PW4 was walking on the road at the time of incident. According to PW4, a girl and a boy were forcibly dragged inside the Max vehicle on 21.01.2013. He dialed the police on telephone no. 100. The Investigating Officer inspected the spot in PW4's presence.
15) PW5 is a police witness, who was a member of the police team, and has also witnessed the incident. PW5 7 also mentioned about the incident in the G.D. and proved the same. PW5 also proved recovery memo, as also the chik FIR.
16) PW6 also accompanied other police personnel to the place of incident. He is also a police personnel, who witnessed the incident and also proved recovery memo.
17) PW7 (Medical Officer) proved medical report (Ext. Ka-5) of the victim. Victim's vaginal swab was also taken for pathological examination. In the report, epithelial cells and spermatozoa were seen present. Supplementary report (Ext. Ka-7) was exhibited at the instance of PW7. As per X-ray report, the age of the victim was between 18 to 19 years.
18) PW8 proved site plan (Ext Ka-8) and statement of victim and abducted Ramesh Singh under Section 164 Cr.P.C. PW8 also conducted investigation at some length and finally submitted charge sheet (Ext. Ka-10) against all the accused persons.
19) PW9 is the Judicial Magistrate, who recorded the statement of the victim under Section 164 Cr.P.C. and proved the same as Ext. Ka-11. PW9 also proved the statement of Ramesh Singh (person abducted) under Section 164 Cr.P.C.
20) In their statements under Section 313 Cr.P.C. accused-appellants denied the incident. Although they 8 stated that they will be filing evidence in defence, but did not file the same.
21) In her cross-examination, PW2 stated that she stayed at Pithoragarh for another 1-1½ months, after this incident. The police took her to the police station around 11:15 P.M. or 12:00 A.M. PW2 went to her house on the next day at around 02:30 A.M. Police got her signatures at the police station. Police might have also obtained her thumb impression on some piece of papers, but she could not understand the import of those papers properly. PW2 did not know the accused persons before the date of incident. PW2 had not seen them before that. PW2 had come from Nepal to adduce evidence (in the Sessions Trial). PW2 remained in the police station from 05.05.2013 onwards. PW2's examination-in-chief was recorded on 09.05.2013 before learned Sessions Judge, Pithoragarh. PW2 was not permitted by her aunt to stay in her house. PW2 denied that she was tutored by the police. She admitted that she was interrogated by the police during the course of investigation. She told the police that accused Sushil slapped Ramesh. She told the police that accused Sushil made an attempt to commit rape with her. She also stated that accused Sanjay was one of the accused, who also made an attempt to commit rape with her. She denied that she has given such statement at the instance of the police. PW2 could know the names of the accused persons only on the revelation of the police because she did not know their identity before the incident took place. PW2 also stated that, earlier she did not know the names of the 9 accused persons, but subsequent thereto she could know the names of the accused, which were revealed by the police. PW2 denied the suggestion of learned counsel for the defence that no such incident ever took place.
22) As has been stated above that in her examination-in-chief, PW2 has supported the prosecution story, alleging against the accused persons, among other things, that accused Sanjay and Sushil forcibly dragged her and PW3 Ramesh Singh inside Max vehicle. After sometime, Ramesh Singh was taken out from the vehicle by accused Sushil and was also slapped by said accused. Accused Sanjay outraged modesty of PW2 and also kissed her. Sanjay and Narendra threatened PW2 that if she reveals such incident to anybody, she would be killed. Accused persons were insisting PW2 to have sexual relations with them and also threatened Ramesh Singh with dire consequence.
23) As has been stated above, PW3 has supported the prosecution story in his examination-in-chief stating that accused persons sitting in the vehicle outraged modesty of PW2 and also tried to assault her. In his cross- examination, PW3 stated that he along with victim reached police station at around 11:00 P.M., in the night. A woman police officer interrogated him. PW3 along with PW2 remained in the police station upto 24-25.01.2013. PW3 plainly conceded that he did not know the names of the accused persons, who were although not armed with knife or country made pistol, but they pretended as if they were 10 armed with such weapons. PW3 denied the suggestion of learned counsel for the defence that no such incident took place.
24) In this way, the prosecution story has been aptly described by the victims (PW2 and PW3). Substance of their cross-examination has already been reproduced by this Court here-in-above. Nothing has come in their cross- examination to suggest that they were telling a lie. Nothing concrete has come in their cross-examination, even to suspect that they were telling a lie. Their evidence has to be accepted on its face value.
25) On the report of kidnapping of victims by three persons, PW2 was also medically examined. In the supplementary medical report, the Medical Officer found that 'there are vaginal epithelial cells visible in the smear. There are spermatozoa visible in the smear'. X-ray report showed the age of victim to be approximately 18-19 years. Learned trial court has properly discussed and dealt with every aspect of the case to hold the accused-appellants guilty of certain offences. Prosecution has, therefore, been able to prove the guilt against the accused-appellants beyond a shadow of reasonable doubt.
26) Accused-appellant Sanjay Kumar has rightly been convicted under Section 376/511, 366, 342 IPC and was sentenced appropriately.
1127) Accused-appellant Narendra Singh and Sushil Kumar have rightly been convicted under Sections 366, 342 IPC and were sentenced appropriately.
28) It is the submission of Mr. Kurbal Ali, learned counsel for appellants Sushil Kumar and Sanjay Kumar, as also Mr. Kailash Chand Tiwari, learned Amicus Curiae appearing on behalf of appellant Narendra Singh that offence punishable under Section 366 IPC is not made out against accused-appellants Narendra Singh and Sushil Kumar. The Court is not inclined to agree to such submission of learned counsel for the appellants. Section 366 IPC reads as under:
"whoever.... abducts any woman with intent that she should be compelled, or knowing it to be likely that she will be compelled, ...., or in order that she should be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse..."
29) Even it be conceded that Narendra Singh and Sushil Kumar did not commit illicit intercourse with PW2, but the facts remains that PW2 was abducted by all the miscreants knowing it to be likely that she will be compelled,... or in order that she should be forced or seduced to illicit intercourse, knowing it to be likely that she will be forced or seduced to illicit intercourse.
30) Considering the elements of offences which have been brought on record, there is no reason to interfere with the conviction and sentence awarded to the accused-
12appellants. Conviction and sentence recorded by the trial court against the accused-appellants are affirmed. All the accused- appellants shall be made to serve out the sentence awarded by the trial court against them.
31) Criminal appeal, therefore, fails and is dismissed.
32) Accused-appellants Sushil Kumar and Sanjay Kumar are on bail. Their bails are cancelled. They are directed to surrender forthwith before the court below to serve out the remaining part of their sentence. Accused- appellant Narendra Singh is in jail. A copy of this judgment be sent to the Superintendent of jail concerned, where accused-appellant Narendra Singh is currently serving out his sentence.
33) Let a copy of this judgment alongwith the lower court record be also sent to the court below for ensuring compliance.
(U.C. Dhyani, J.) Dt. October 07, 2017.
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