Uttarakhand High Court
Usman @ Sameer vs State Of Uttarakhand on 25 January, 2021
Equivalent citations: AIRONLINE 2021 UTR 7
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 206 of 2020
Usman @ Sameer ..... Appellant
Versus
State of Uttarakhand ...... Respondent
Mr. Parikshit Saini, Advocate for the appellant. Mr. Shubhash Tyagi Bharadwaj, Deputy Advocate General with Ms. Shivangi Gangwar, Brief Holder for the respondent/State.
[Per: Hon'ble Lok Pal Singh, J.] Criminal law was set into motion at the instance of PW1 (complainant and sister of the victim) who submitted a report (Ext. A-1) with P.S. Kotwali Gangnahar, Roorkee, District Haridwar on 28.03.2016 at 21:35 hours stating therein, that her sister, who is a minor was enticed away by accused Usman @ Sameer, r/o House No. 657, Banda Road, Roorkee on 11.03.2016, but father of accused did not permit them to enter the house and instead handed them over to the police. The victim was given in the custody of her father before the Magistrate. On her return back to her house, sister of the complainant told that the accused-appellant took her to hotel Maya Palace on 27.10.2015, where he committed rape forcibly with the victim. Again on 08.01.2016, accused took the victim to Hotel 2 Jewels, Civil Lines, Roorkee and committed rape on the victim against her wishes and threatened her that if she dare to disclose anything to her parents or relatives and will disobey him, he will commit murder of her entire family members.
2) On the basis of said report, chik FIR (Ext. A-6) was lodged against the accused in respect of offences punishable under Sections 363, 366A, 376 IPC and the one under Section 3/4 of Protection of Children from Sexual Offences Act (POCSO). The investigation of the case commenced. The I.O. got recorded statement of the victim under Section 164 Cr.P.C. before the Magistrate; got the victim medically examined; arrested the accused and prepared arrest memo thereof, prepared site plan and also took into possession the copy of the school register and transfer certificate. The I.O. also obtained medical report of the accused. After completion of investigation, charge sheet (Ext A-12) was filed against the accused for his trial in respect of selfsame offences.
3) The case was committed to the court of Special Judge (POCSO), Haridwar for trial. Charges were framed against the accused under Sections 363, 366A, 376(2)(n) IPC and Section 5(i)(l) / 6 of POCSO Act. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 (complainant and sister of the 3 victim); PW2 Ms. 'X' (victim) (name withheld); PW3 (mother of the victim); PW4 (father of the victim); PW5 Rakesh Chandra (Manager of hotel Maya Palace); PW6 Smt. Rajni Devi (Principal of Moolraj Girls Inter College); PW7 Sanjay Kumar (Manager of hotel jewels); PW8 Constable Gopal Ram (who prepared the Chick FIR); PW9 Dr. Deepa (who medically examined the victim); PW10 S.I. Pradeep Singh Tomar (I.O) and PW11 S.I. Ranveer Singh. However no witness was examined in defence. In reply to questions posed under Section 313 of Cr.P.C., the accused replied that he is innocent and the prosecution evidence against him is false. Accused further stated that he was implicated in the crime as he belongs to different religion.
4) The trial court, after hearing the prosecution and the defence, convicted the accused- appellant under Sections 363, 366A, 376(2)(n) IPC and Section 5(i)(l) / 6 of POCSO Act. The convict- appellant was sentenced to undergo rigorous imprisonment for a period of five years along with a fine of Rs.10,000/- in respect of offence punishable under Section 363 IPC; seven years rigorous imprisonment along with a fine of Rs.10,000/- under Section 366A; ten years rigorous imprisonment along with a fine of Rs.25,000/- under Section 376(2)(n) IPC. Convict-appellant was also sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of 4 Rs.25,000/- under Section 5(i)(l) / 6 of POCSO Act. All the sentences were directed to run concurrently.
5) In her examination-in-chief, the victim stated that I studied upto Class XII in Moolraj Girls Inter College, Ramnagar, Roorkee (District Haridwar). My date of birth is 25.07.1998. Usman @ Sameer was known to me. He used to tease me since 2013. He took me under his influence and established friendship with me. He took me to Hotel Maya Palace on 27.10.2015, situated at Rampur Chungi, where he threatened me and committed rape with me forcibly. He also threatened me that if you dare to tell anyone, I will kill your entire family members. Thereafter, on 08.01.2016, accused took me to hotel Jewels, Civil Lines Roorkee and again committed rape with me and threatened me that he will upload the photos on internet, if I try to narrate the incident to anyone. On 11.03.2016, when I was going to the Park for morning walk, accused met me at Ramnagar and took me to his house situated at Rampur Chungi. His parents and sister were there in the house. I narrated the entire episode to father of the accused, who handed both of us to police station Gangnahar. Accused threatened on the way as to why I narrated the episode to his father and threatened me that if you try to tell anything to the Police, he will kill my sister and mother. The Police produced me before Sub Divisional Magistrate. I 5 told the S.D.M the facts as per the dictum of Usman. I adduced wrong statements before the police and the S.D.M. under duress. My statements were recoded in the Court of Magistrate. The victim proved her statements recorded under Section 164 of Cr.P.C. in the Court. Victim was medical examined in Government Hospital, Roorkee. Paper No. 12B/1 and 12B/2 were the attested copies of the marksheets of the victim of Classes 10th and 12th. In this way in her examination- in-chief, the victim has adduced evidence that the accused on the pretext of friendship raped her twice on 27.10.2015 and 08.01.2016 at hotel Maya Palace and hotel Jewels Civil Lines Roorkee against her wishes. In her examination-in-chief she deposed that she did not disclose this thing to anybody as the accused has threatened her that he will upload my objectionable photos on the internet and will kill my entire family members.
6) PW3, mother of the victim, stated on oath that accused Sameer enticed away her younger daughter on 11.03.2016 and established physical relations with her. The date of birth of the victim is 25.07.1998 and she studied from Moolraj Girls Inter College, Roorkee. Sameer also took the victim to the Hotel and forcibly committed rape with her. The entire episode was narrated by the victim to her mother. The FIR was lodged by the elder daughter of PW3.
67) PW4, father of victim, stated on oath that victim is her daughter. She is aged 17 years old. Sameer enticed away the victim one and half years ago and committed rape with her in the Hotel. The victim narrated the entire episode to PW4 on her return back to her house. According to PW4, the victim studied at Moolraj Girls Inter College, Roorkee.
8) PW5 Rakesh Chand stated on oath that he was posted as Manager in hotel Maya Palace, Rampur Chungi, Roorkee from the year 2014 to February 2017. Usman came to the hotel on 27.10.2015 and he was allotted room no. 303. He came to the hotel at 11:09 A.M. and left the room on the same day at 04:30 P.M. He was accompanied with a girl, whom he introduced as his friend. PW5 proved Ext. A-2, certified copy of the register. PW7 Sanjay Kumar, Manager of Hotel Jewels, deposed that he is working in said hotel since last 5-6 years. On 08.01.2016, Usman along with a girl came to the hotel in the afternoon. Usman introduced the girl as his wife. They were allotted room no. 101. They left the room the next day. PW7 proved paper no. 12B/4 on record, which is photocopy of the register of the hotel in which entry was made by Usman at sl. No. 9. Photocopy of the original register was submitted with P.S. Gangnahar by PW7.
79) PW6 Smt. Rajini Devi is the Principal of Moolraj Girls Inter College. She proved the register relating to the date of birth of the victim. The details of the victim find mention at sl. No. 8831 in S.R. register. According to this witness, victim took admission in the college in Class I on 28.07.2003 and completed Intermediate after passing High School examination on 28.06.2013. As per S.R. Register, the date of birth of the victim is 25.07.1998. PW6 proved the self attested copy of the S.R. Register as Ext. A-3 and the certified copy (Ext. A-4) of the original Gazette Year 2012-13 in respect of High School examination. The certificate in respect of date of birth of the victim is Ext. A-5.
10) PW9 Dr. Deepa is the Medical Officer, who medically examined the victim. In her statement on oath she stated that on 29.03.2016 at 03:00 P.M., the victim was brought to Government Hospital, Roorkee. PW9 proved medical examination report (Ext. A-8) and supplementary medical report (Ext. A-9).
11) PW11 S.I. Ranveer Singh deposed that on 10.03.2016, Salim brought his son Usman and the victim to the P.S. Kotwali Gangnahar. PW11 produced the victim before S.D.M., Roorkee on 11.03.2016 where her statements were recorded under Section 164 Cr.P.C. Thereafter, the victim was sent to Nari Niketan on the orders of the 8 S.D.M., as none of her family members were present at the time of her handing over.
12) The statement of the PW2 (victim) not only gets corroboration from the statement of PW1 (complainant), but also from the medical examination report (Ext. A-8) wherein it has been mentioned that on p/v examination the hymen of the victim was found ruptured. The statements of these witnesses, including that of the victim, are natural and reliable.
13) The police did not get recorded the statement of the victim before the Judicial Magistrate and instead chose to record the statement before the S.D.M., Roorkee. Though S.D.M. is also a Magistrate, but when several Judicial Magistrates were available at Roorkee, the propriety demands that the statements of the victim ought to have been recorded in presence of Judicial Magistrate. But, for the reasons known best to the arresting officer he chose to get recorded the statements of the victim under Section 164 Cr.P.C. before the S.D.M. The allegation of threat has been made by the victim, a minor, at the time of incident and throughout the allegation of rape under threat perception has been made against the accused- appellant. It has been clarified by the victim in her statement on oath before the trial court that it was the accused-appellant who threatened her to give statement in his favour and under such threat 9 perception she deposed under Section 164 of Cr.P.C. as per the dictum of the appellant. The role of the arresting officer, who produced the victim before the S.D.M. instead of producing her before the Judicial Magistrate is highly doubtful which leads to the presumption that he managed the statement of the victim recorded before the SDM.
14) Learned counsel for the appellant would submit that the appellant and the victim were friends and the sexual relations between them were made with the consent of the victim. He would further submit that in her statement recorded under Section 164 Cr.P.C. the victim has stated that no rape was committed upon her but during trial she took a U-turn and gave just opposite statement to the one given under Section 164 Cr.P.C.
15) Admittedly, the victim was aged 17 years at the time of incident, when the accused-appellant enticed her and committed rape on her for the first time on 27.10.2015. In the attested copy (Ext. A-4) of the original Gazette of Uttarakhand School Education Council, Ramnagar, Naintial of the year 2012-13 in respect of High School examination, the date of birth of the victim is shown as 25.07.1998, which clearly shown that the victim was minor on the date of incident. If the victim was a minor on the date of incident, her consent, if any, was immaterial. Thus, the argument advanced by 10 learned counsel for the appellant that the physical relations were established between them with the consent of the victim is misconceived. So far as the submission that the victim took complete U-turn from her statement recorded under Section 164 Cr.P.C. and had given contradictory statement in her deposition during trial is concerned, it has come on record that in her examination-in-chief the victim has categorically stated that whatever she stated in her statement recorded under Section 164 Cr.P.C. before the Magistrate was stated under duress of the accused-appellant and she had given wrong statement to the Magistrate and the police under threat and allurement of the accused- appellant. During trial when the statement recorded under Section 164 Cr.P.C. were shown to the victim, she stated on oath that more than half of the facts recorded in the statement are wrong and whatever she had stated in her statement recorded under Section 164 Cr.P.C. were stated as per the dictum of the accused-appellant. Thus, the second submission also has no force.
16) Learned counsel for the appellant would also submit that in the present case no ossification test was conducted on the victim, which creates reasonable doubt on the prosecution story in regard to the age of victim on the date of incident.
17) The argument advanced by learned
counsel for the appellant has no force. It is
11
specifically provided in Sub Rule (3) of Rule 12 of Juvenile Justice (Care and Protection of children) Rule, 2007, that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available, and in the absence thereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat....
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board.
Thus, it is abundantly clear that only in absence of any of the aforesaid options postulated in Rule 12(3), the assessment of age of the concerned child should be ordered to be done on the basis of medical opinion.
18) Learned counsel for the appellant would further submit that the appellant has falsely been implicated in the crime. The argument advanced on behalf of appellant that he was falsely implicated in the crime also does not help him as the victim is a young girl and has her entire future ahead. Why will the victim implicate the accused-appellant in a false case without any cogent reason? It is pertinent to 12 mention here that a woman, more particularly a young girl, will never stoop too low so as to implicate someone in a false rape case when her own reputation is at stake. Thus, it can safely be said that the evidence adduced by the victim is trustworthy and inspire confidence in the prosecution story. If the totality on the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
19) Lastly, learned counsel for the appellant submits that harsh punishment has been given to the appellant disproportionate to his act. However, on examination of entire evidence on record, I am of the considered opinion that the trial court has rightly found appellant guilty of the offences for which he was charged.
20) It is a case of serious nature in which a minor was subjected to rape not only once but twice by the accused-appellant after alluring her and thereafter keeping her under constant threat that her entire family members would be killed, as also under the threat of uploading her objectionable photos on internet. As such, from the testimony of the victim corroborated by the statement of PW1, PW3 and PW4, the medical examination report (Ext. A-8), it is proved beyond reasonable doubt that 13 accused-appellant Usman @ Sameer committed offences punishable under Section Sections 363, 366A, 376(2)(n) IPC and Section 5(i)(l) / 6 of POCSO Act. This Court fully concur with the conviction and sentence recorded by the trial court against the accused-appellant. There is no room of doubt in the testimony of the victim as well as other witnesses examined on behalf of the prosecution and fully substantiated by the medical report.
21) For the reasons as discussed above, I do not find any error of law or that of fact or in appreciation of evidence, on the part of the trial court. As such, impugned judgment and order does not need interference of this Court. Accordingly, the appeal is liable to be dismissed. The appeal is hereby dismissed. Conviction and sentence of the accused-appellant is maintained.
22) Lower court record be sent back.
(Lok Pal Singh, J.)
Dt. January 25, 2021.
Negi