Uttarakhand High Court
Deepak vs State Of Uttarakhand on 26 April, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserve
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.316 of 2017
Deepak ...... Appellant
Vs.
State of Uttarakhand ..... Respondent
Present:
Mr. Pooran Singh Rawat, Advocate for the appellant.
Mr. Subhash Tyagi Bhardwaj, Deputy Advocate General
for the State.
JUDGMENT
Per:Hon'ble Ravindra Maithani, J.
Present appeal has been preferred against the judgment and order dated 24.10.2017, passed in Sessions Trial No.29 of 2016, State Vs. Deepak, by the court of District & Sessions Judge, Pauri Garhwal (for short, "the case"). By the impugned judgment and order, the appellant has been convicted under Section 365, 366, 376 and 506 IPC and sentenced as hereunder:-
(i) Under Section 365 IPC, rigorous imprisonment for a period of five years with a fine of Rs. 2000/- In default of payment of fine, simple imprisonment for a further period of three months.
(ii) Under Section 366 IPC, rigorous imprisonment for a period of five years 2 with a fine of Rs. 2000/- In default of payment of fine, simple imprisonment for a further period of three months.
(iii) Under Section 376 IPC, rigorous imprisonment for a period of ten years with a fine of Rs. 5000/- In default of payment of fine, simple imprisonment for a further period of three months.
(iv) Under Section 506 IPC, rigorous imprisonment for a period of one year with a fine of Rs. 1000/- In default of payment of fine, simple imprisonment for a further period of three months.
2. Prosecution case, briefly stated, is as follows:-
The victim, a woman of 30 years of age told her husband that she wanted to go to her father's house. Therefore, on 22.07.2016, her husband dropped the victim at Srinagar Petrol Pump at 8:30 a.m. on that date. The victim had told to her husband that her brother would come to take her to her father's house. Subsequently, it was revealed that the victim did not reach to her father's house. Her husband, who is PW1 lodged a report at the Police Station on 23.07.2016. The report was lodged in missing. Subsequently, the matter was converted to 3 Section 365 IPC. It was investigated. On 21.08.2016, the victim was recovered when she was with the appellant. Her statement was recorded on 24.08.2016. She was medically examined also. When the victim was recovered, her inner garments were taken into custody by the police and they were forwarded for forensic examination. The forensic examination report was also received. The Investigating Officer, after preparing the site plan of the place of incident, finally submitted charge sheet against the appellant under Sections 365, 366, 376, 506 IPC. On 04.01.2017, charge under Sections 365, 366, 376 and 506 IPC were framed against the appellant. To which, he denied and claimed trial.
3. In order to prove the case, the prosecution examined, in all seven witnesses, namely, PW1 husband of the victim, PW2 the victim, PW3 brother of the victim, PW4 Dr. Sandhya Bajpeyee Khurna, PW5 Constable, Rekha Mehta, PW6 Dinesh Butola, and PW7 Rafat Ali.
4. Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, "the Code"). According to him, he did not abduct the victim. She on her own accompanied him.
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5. After hearing the parties, by the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, the appellant has preferred this appeal.
6. Heard learned counsel for the parties and perused the record.
7. At the very outset, it may be noted that the appellant has been examined under Section 313 of the Code on 21.09.2017. He was 28 years of age on that date. The victim was examined on 22.06.2017. She was 30 years of age then. The victim was married to PW1. They have two children. The elder son was of 9 years of age and the younger son was of 4 years of age in the year 2017.
8. Learned counsel for the appellant would submit that it is not a case of rape; it is a case of consensual act; the victim, on her own joined the company of the appellant; the appellant did not commit any offence; he is an innocent person.
9. On the other hand, learned State counsel would submit that the FIR is prompt in the case; the victim has supported the case. During her examination, the medical 5 evidence and forensic evidence also supported the prosecution case.
10. PW1 is the husband of the victim. According to him, on 22.07.2016, at 8:30 in the morning, the victim told him that she wanted to go to her father's house, therefore, he dropped the victim and her younger son at Srinagar petrol pump. The victim had then told to this witness that her brother would come and take her to her father's house. In the evening when this witness made a telephonic call to her father-in-law's house, it was revealed that the victim did not reach her father's house. Thereafter, he lodged a report Ex.A1.
11. PW2 is the victim. In her examination, she has stated that the appellant used to operate JCB Machine in their village. He would talk to her and induce her to leave her house. On 22.07.2016, the appellant gave her some intoxicating material and thereafter the appellant took her to Delhi. From Delhi, he took her to Palwal, there he threatened her, forcibly married her and got her signatures on some documents. According to PW2, the victim, the appellant forcibly established physical relations with her, without her will. When the Police came in search of them, according to this witness, the appellant took her 6 to Rajasthan. On 30.07.2016, he forcibly married the victim, threatened her child to life. They were in Ballabhgarh, when police recovered her. She also handed over her inner garments to the police. This witness proved the recovery memo also. According to her, she was examined before the Magistrate. She also proved her statement recorded under Section 164 of the Code.
12. PW3 is the brother of the victim. After recovery, the victim was given in his supurdgi on 23.08.2016.
13. PW4 Dr. Sandhya Bajpayee Khurana examined the victim on 23.08.2016. In the internal examination, she found the followings:-
"1- Vulval area inflamed and red.
2- Vaginal swab taken, slide made with vaginal swab.
3- Uterus normal."
14. According to PW4, the victim was subjected to forceful intercourse.
15. PW5 Constable Rekha Mehta has stated that she took the victim for medical examination.
16. PW6 Constable, Dinesh Butola has proved the chik FIR entries in the General Diary. 7
17. PW7 Rafat Ali is the Investigating Officer. According to him, on 22.08.2016, during investigation, he recovered the victim and arrested the appellant. He has proved the documents.
18. The appellant has been convicted under Sections 365, 366 & 376 IPC. Sections 365 and 366 IPC are as hereunder:-
"365. Kidnapping or abducting with intent secretly and wrongfully to confine person.- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.-Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of 8 authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."
19. A bare reading of above sections reveals that it relates to the offences of kidnapping and abduction with certain purposes. According to the prosecution, the victim was abducted by the appellant. Abduction is defined under Section 362 IPC. It is as hereunder:-
"362 Abduction.- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
20. Section 376 provides punishment for offence of rape. In order to constitute an offence of rape as defined under Section 375 IPC, it has to be shown that the act was committed against the will and without the consent of the victim. This is very important in the instant case.
21. At the cost of repetition, it may be reiterated that the victim was married woman of 30 years of age, having two children, the elder son 9 years of age and the younger son 4 years of age. Her husband has stated that it is the victim, who had told it to him that she wanted to go 9 to her father's house. Thereafter, the husband of the victim i.e. PW1 dropped her at petrol pump, Srinagar. But, the victim did not reach her father's house. The victim had told it to PW1, her husband that her brother would take her to her father's house.
22. PW2 is the victim. According to her, on 22.07.2016, the appellant gave her some intoxicating material and took her to Delhi. Thereafter, the appellant took her to various places and forcibly established physical relations with her. She also states that forcibly the appellant married her. This is what the victim has stated in her examination-in-chief. But, in her cross- examination, she has changed her statements to a certain extent. In para no.6 of her statement, PW2, the victim has stated that on 22.07.2016, she wanted to go to her father's house, therefore, her husband dropped her at Shrikot, near Petrol Pump. It was a crowded place. In para no.8 of her statement, PW2, the victim has stated that from Shrikot, they came to Srinagar-Rishikesh Roadways Bus Station, which was also crowded and thereafter, they reached Delhi at about 10:00 - 11:00 late at night. These all places were crowded but she did not raise any alarm. She did not speak to anyone. In para no.9 of her 10 statement, the victim has stated that on the same night she reached Palwal, Haryana.
23. PW7, Rafat Ali is the Investigating Officer. In para 10 of his statement, he has stated that during investigation, it was revealed that the victim reached Delhi on her own. The appellant met her in Delhi. She went to Delhi with her younger son. The statement of the victim is not inspiring confidence. The question of force or deceit is nowhere visible. In her examination-in-chief, the victim has stated that after giving some intoxicating material, she was taken to Delhi by the appellant. Whereas, her husband, as PW1 has stated that it is the victim, who has requested him that she would be going to her father's house and thereafter, PW1, dropped her at petrol pump, Srinagar. In her cross-examination, this much has been admitted by PW2, the victim. It means that the victim was not given any intoxication material. It clearly shows the design of PW2, the victim to leave her husband's company. She on her own left her husband's company. She was a grown up woman and able to understand the consequences of her act. She was mother of two children.
24. PW7 Rafat Ali has stated that, in fact, the victim reached Delhi with her son on her own. All the places were 11 much crowded, but the victim did not raise any alarm. It reflects her consent and her willingness to leave her husband's house.
25. In the impugned judgment, at para 18, reference has been made to certain documents, where it was argued on behalf of the appellant that they had married and sought protection from the Hon'ble Punjab and Haryana High Court. But, this aspect was not much examined.
26. In the instant case, the prosecution has utterly failed to prove that the appellant abducted the victim. The prosecution also utterly failed to prove that the physical relations were established by the appellant with the victim without her consent or against her will.
27. In view of the foregoing discussion, this Court is of the view that prosecution has not been able to prove the charge under Sections 365, 366, 376 506 IPC beyond reasonable doubt against the appellant. The appellant ought to have been acquitted of the charge. Therefore, the appeal deserves to be allowed.
28. The appeal is allowed.
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29. The impugned judgment and order is set aside. Appellant is acquitted of the charge under Sections 365, 366, 376 506 IPC.
30. The appellant is in jail. He be released forthwith, if not wanted in any other case, subject to his furnishing a personal bond and two reliable sureties, each of the like amount to the satisfaction of the court concerned under Section 437 A of the Code.
31. Let a copy of the judgment along with lower Court record be sent to the Court below for the compliance.
(Ravindra Maithani, J.) 26.04.2022 Jitendra