Uttarakhand High Court
Rajan Sharma vs State Of Uttarakhand on 21 August, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Jail Appeal No.35 of 2014
Rajan Sharma
........Appellant (in Jail)
Versus
State of Uttarakhand
.........Respondent
Mr. Devesh Upreti, Advocate for the appellant
Mr. Raman Kumar Sah, Deputy Advocate General for the State.
Hon'ble Lok Pal Singh, J.
This appeal has been preferred by the convict through the Jailor, District Jail, Haridwar, against the judgment and order dated 10.09.2014 passed by Second Addl. Sessions Judge, Haridwar in Sessions Trial No.05 of 2013, whereby the learned Sessions Judge has convicted the accused/appellant under Section 363 and 376(2)(f) of The Indian Penal Code (for short IPC). The accused/appellant has been sentenced to rigorous imprisonment for a period of three years under Section 363 IPC with fine of Rs.1,000/- and ten years rigorous imprisonment with fine of Rs.1,000/- under Section 376(2)(f) IPC and in default of payment of fine, further imprisonment for six months has been awarded.
2. Heard learned counsel for the parties, and perused the lower court record.
3. Prosecution story, in brief, is that Constable Anurag Singh Rawat lodged an F.I.R. stating that on 11.8.2012 when Constable Anurag Singh Rawat and Constable Yashwant Agarwal were on night patrolling, at about 2 pm, one Rajesh Kumar, who was the driver of 2 108 Ambulance and known to them, informed them that one suspicious person is going towards Rodibelwala platform and he is holding a child in his lap. After receiving his information, the complainant moved towards Rodibelwala platform and saw a man holding 2- 3 years child in his lap. These constables caught the accused at about 2.10 am and enquired about his name and address, on which he told that he picked the child from Subhas Ghat, Har ki paidi. In the meantime, one lady, man and a boy, arrived, who introduced them as parents and brother of child. It is stated that recovery memo (Ext.A1) was prepared the accused was arrested. On the basis of report, chik F.I.R. (Ext.A4) was prepared and Case Crime No. 482 of 201 was registered against the accused/appellant under Section 363 of IPC. Investigation was taken up by P.W.10 Sub Inspector Manmohan Singh. He recorded the statement of witnesses, prepared the site plan, got conducted medical examination of victim and the accused, and also recorded statement of accused. On the basis of medical examination of victim, the I.O. added Section 376(2) in the report against the accused, and on completion of investigation, submitted charge sheet (Ex. A11) against accused/appellant under sections 363 and 376(2)(f) IPC.
4. Chief Judicial Magistrate, Haridwar, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. Learned V Additional Sessions Judge, Haridwar, on 08.03.2013, framed charge of offence punishable under section 363 and 376(2)(f) IPC, against the accused/appellant Rajan Sharma. The charge was read 3 over and explained to the accused, who pleaded not guilty and claimed to be tried. Lateron, the Sessions Trial was transferred to the Court of II Addl. Sessions Judge, Haridwar for hearing and disposal.
5. The prosecution, in order to prove its case, got examined P.W.1 Constable Anurag Singh, P.W.2 Yashwant Aswal, P.W.3 Rajesh Kumar, P.W.4 Dr. P.R. Pandey, P.W.5 Kanchan Devi, P.W.6 Krishanpal, P.W.7 Head Constable Kanta, P.W.2 Dr. Rajeev Kumar, P.W.9 Prakash Chand Mathpal, P.W.10 Sub Inspector Mohan Singh and P.W.11 Dr. Rajesh Gupta.
6. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and stated that he has been falsely implicated in the case because of a quarrel which had taken place between him and the police personnel.
7. The trial court, after hearing the parties, found that the prosecution has successfully proved charge of offences punishable under section 363 and 376(2)(f) IPC against accused Rajan Sharma, and convicted and sentenced him, as above.
8. Feeling aggrieved by the judgment and order of the trial court, this criminal jail appeal has been preferred by the accused through Jailor, District Jail, Haridwar.
9. Before further discussion, it is pertinent to mention the medical report of the victim. Victim was 4 medically examined by PW-4 Dr. P.R. Pandey, Gynecologist on 11.08.2012 at about 1.51 p.m. at District Woman Hospital, Haridwar and the Medical Officer prepared the medical reports Ext. A-2, which is as under:-
"Vagina - Reddened, swollen,
- Push discharge
- hymen torn
- vagina admit one finger loose"
She advised for X-ray of wrist, foot and elbow for age verification. She prepared two slides for presence of spermatozoa. Dr. P. R. Pandey, in her supplementary report, opined that no spermatozoa seen. She also opined that no definite opinion can be given about rape.
10. P.W.1 Constable Anurag Singh is the complainant of the case. He, during his testimony, has reiterated the assertions made in the First Information Report. He has stated that when he along with Constable Yashwant Singh Aswal were on night patrolling, at about 2 pm, one Rajesh Kumar, who was the driver of 108 Ambulance and known to them, informed them that one suspicious person is going towards Rodibelwala platform and he is holding a child in his lap. After receiving his information, the complainant moved towards Rodibelwala platform and saw a man holding 2-3 years child in his lap. These constables caught the accused at about 2.10 am and recovered the girl from his possession. He has proved the recovery memo (Ext.A1) and arrest memo (Ext.A13).
11. P.W.2 Constable Yashwant Aswal has corroborated the statement of P.W.1 Constable and has 5 fully supported the prosecution case. He has also proved the recovery memo (Ext.A1) prepared by P.W.1 Constable Anurag Singh.
12. P.W.3 Rajesh Kumar is driver of 108 Ambulance. He has stated on 11.8.2012 at about 1 pm, he was coming back at CCR after dealing a case. He was going to have tea from bridge to Har ki paidi, he saw a suspicious man going towards Rodibelwala from Subhash Ghat bridge having a child in his hands. He further stated that he informed about this man to two constables, who receiving this information, went to the spot. This witness stated that as he had doubt in the accused, therefore, he had given this information to the police constables.
13. P.W.4 Dr. P.R. Pandey, Gynecologist, is the medical officer, who has medically examined the girl. She has proved the medical report (Ext.A2) and supplementary medical report (Ext.A3) prepared by her at the time of medical examination of girl.
14. P.W.5 Kanchan Devi is mother of victim. She has stated that on the date of incident, she, her husband, son and the victim were sleeping under the bridge of Har Ki Paidi. At about 1.30 am in the night, when she wake up, she found that the victim is not there. They tried to search the victim but all in vain. Thereafter, when they were going to police station, they were told that their girl has been recovered. She has stated that her girl was found in the police station where she was sleeping. It was told by the police that accused had abducted the victim.
615. P.W.6 Krishna Pal is father of victim. He has also corroborated the statement of P.W.5 Kanchan Devi. He has stated that he found her daughter at police station on the information given by driver of 108 Ambulance. He also stated that his girl (victim) was sleeping in the police station and police informed him that accused had abducted the victim.
16. P.W.7 Head Constable Kanta Pal. He has proved Chik F.I.R. (Ext.A4) and G.D. entry (Ext.A5).
17. P.W.8 Dr. Rajeev Kumar is the doctor who had medically examined the accused Rajan Sharma. He has stated that no external injury was found on the body of the accused. He has proved the medical report of the accused (Ext.A6).
18. P.W.9 Prakash Chand Mathpal has stated that on 11.08.2012 he was posted as Incharge Inspector, Haridwar. Case crime no.482/2012 under Section 363 IPC was registered against the accused by Constable Anurag Singh. He has interrogated the accused and the accused had confessed his guilt. This witness has also stated that on the basis of statement of the accused, Section 376 IPC was added.
19. P.W.10 Sub Inspector Mohan Singh has conducted investigation of the case. He has stated during the course of investigation, he had recorded the statement of witnesses, prepared the site plan, got conducted medical examination of victim and the accused, and also recorded statement of accused. On n completion of investigation, he had submitted charge 7 sheet (Ex. A11) against accused/appellant under sections 363 and 376(2)(f) IPC.
20. In the backdrop of what has been stated above, now this Court has to deal with as to whether, in the facts and circumstances of the case, any offence is made out against the appellant. In the present case, the victim is a minor girl, aged three years. P.W.4 Dr. P.R. Pandey, who has medically examined the victim has deposed in her examination-in-chief that there was redness on the vagina and push (il) was discharging from it. Vaginal smear was taken and sent for examination of any spermatozoa-dead or alive. In the pathological report, no spermatozoa was seen dead or alive. In cross-examination, this witness has stated that there was no blood found either on the private part or on the clothes of the victim. There was no push present in the under garment worn by the victim. P.W.8 Dr. Rajeev Kumar has conducted medical examination of the accused. This witness, in his examination-in-chief, has stated that there was no external injury found on the body of the accused. In cross-examination, this witness has stated that medical examination of private part of the accused was not conducted. P.W.5 Smt. Kanchan, mother of the victim, has stated that no rape was committed with her girl. She stated there was no injury on the body of her girl. She herself took off underwear of the girl and had found no injury on her private part. There was also no push discharging from private part of the girl. This witness has also stated that she had refused for medical examination of her girl as according to her rape was not committed with the victim and that first medical examination of the victim was not done in 8 her presence. Besides this, this witness has also stated that her girl was sleeping in a bench in the police station.
21. In a case of rape with a minor girl, as per medical jurisprudence, usually following type of cases are met with by medical officers in their medico-legal work.
(1) Examination of virgins - for alleged rape.
The person may be a woman or a girl who has had no previous experience of sexual intercourse. In these cases, when the first intercourse takes place, the hymen is torn, the tear occurring usually on the posterior aspect on one or both sides. It may also be torn in the mid-line posteriorly. If the hymen is of the annular type, the tears may be multiple. This is so, because such a hymen nearly fully closes up the vaginal orifice.
If the hymen is of the semilunar type, the ruptures are usually bilateral posteriorly, and present the hymen thus torn, in three segments.
When these cases are brought for examination soon after the commission of the act of rape, the hymen is seen with torn margins, which are red. The surrounding tissues are tender and swollen. The edges bleed on touching. The torn edges of the hymen heal quickly, usually within five to six days. Complete healing is present about eight to ten days, when, the tears appear shrunken 9 and like granular tags of hymeneal tissue. These torn but healed edges never unite.
22. I have carefully examined the statement of P.W.4 Dr. P.R. Pandey, who has conducted medical examination of the girl. Though, she has stated that the hymen of the girl was torn, vagina was admitting one finger and that there was redness and swelling present but no definite opinion about rape was given by this witness. There was no bleeding and injury on the private part of the victim. The medical jurisprudence does not support the statement of this witness as well as the medical report prepared by her. Thus, in my view, the statement of P.W.4 Dr. P.R. Pandey is not reliable and trustworthy.
23. Having gone through the entire evidence adduced by the prosecution, it illustrates that the prosecution has utterly failed in proving the guilt of the accused under Section 376 (2)(f) for the reasons enumerating- firstly, according to the evidence of the doctor, no spermatozoa was found dead or alive in vaginal smear examination and that the statement of P.W.4 Dr. P.R. Pandey is not trustworthy, as discussed above. Secondly, the P.W.5 Smt. Kanchan who is mother of victim, in cross-examination, has categorically denied occurrence of rape with her girl and had refused for medical examination due to this reason and thirdly, no medical examination on the private part of the accused was conducted, and fourthly, which is significant and most salient that that the girl was found in police station where she was sleeping in a bench comfortably as deposed by her mother and no injury was either found 10 on her body nor on her private part by P.W5. and nor any push (il) was discharging from her vagina, which creates serious doubt in the entire prosecution story. In my considered view, if rape was committed with the victim, who is only 2-3 years of age, it would not have been possible that the girl could have sleep easily. Considering all the facets of the case, this Court is of the view that the prosecution has miserably failed to proved its case beyond reasonable doubt against the appellant under Section 376(2)(f) IPC and the trial Court has erred in law in convicting the accused/appellant under the said Section.
24. For the reasons as discussed above, the appeal is partly allowed. Impugned judgment and order dated 10.09.2014 passed by Sessions Judge, Haridwar in Sessions Trial No.05 of 2003, convicting and sentencing the accused/appellant under Section 363 is hereby made affirmed, whereas the conviction and sentence recorded by the trial court under Section 376(2)(f) is set aside.
25. Appellant/accused is languishing in jail since 11.08.2012, as such he has served out more period in jail than the sentence awarded to him under Section 363 IPC. Let him be released forthwith if not wanted in any other case.
26. Let a copy of this judgment be sent to the Superintendent of jail concerned for compliance and a copy, alongwith the Lower Court Records, be sent to the concerned trial Court.
(Lok Pal Singh, J.)
Rajni 21.08.2017