Uttarakhand High Court
Rakesh vs State Of Uttarakhand on 12 January, 2018
Equivalent citations: AIRONLINE 2018 UTR 93
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved On: 12.12.2017
Delivered On: 12.01.2018
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Jail Appeal No.45 of 2013
Rakesh
........Appellant (in Jail)
Versus
State of Uttarakhand
.........Respondent
Mrs. Vijay Lakshmi, Advocate (Amicus Curiae) for the appellant
Mr. P.S. Bohara, A.G.A. with Mr. Balvinder Singh, Brief Holder for the State
Hon'ble Lok Pal Singh, J.
This appeal has been preferred against the judgment and order dated 04.09.2013 passed by 3rd Additional Sessions Judge, Haridwar in S.T. No.232 of 2013, whereby the accused/appellant has been convicted under Sections 363, 366A and 376(2)(n) of the Indian Penal Code, 1860 (for short, IPC). He has been sentenced to rigorous imprisonment for a period of five years along with fine of Rs.1,000/- u/s 363; five years' R.I. along with fine of Rs.1,000/- u/s 366A and ten years' R.I. along with fine of Rs.2,000/- u/s 376(2)(n). All the sentenced were directed to run concurrently.
2. Prosecution story, in brief, is that on 18.10.2012 the complainant/father of the prosecutrix submitted a missing report of his daughter, aged 16 years, at P.S. Kotwali Manglaur, District Haridwar. On the basis of missing report, Chik F.I.R. was prepared and case crime no.23 of 2012 was registered. Initially, investigation of the case was handed over to P.W.6 S.I. Pradeep Tomar, which subsequently was transferred to P.W.7 S.I. Kailash Singh. On 30.5.2013, the Investigating 2 Officer arrested the accused/appellant Rakesh and also recovered the prosecutrix from his possession, arrest memo was prepared on the spot. Thereafter the I.O. got recorded the statement of prosecutrix as well as the accused. Statement of the prosecutrix was also got recorded u/s 164 of Cr.P.C. He also got conducted medical examination of the prosecutrix. The I.O. after completing the investigation, submitted charge sheet against the accused/appellant Rakesh, for his trial, in respect of offences punishable under Sections 363, 366A and 376 IPC.
3. On receipt of charge sheet, Addl. Civil Judge (S.D.)/Judicial Magistrate Roorkee, committed the case to the court of Sessions, after giving necessary copies to the accused, as provided under Section 207 of Cr.P.C. On 21.08.2013, 3rd Addl. Sessions Judge, Haridwar, framed charge of offence punishable under sections 363, 366A and 376 of IPC against the accused/appellant, to which he pleaded not guilty and claimed to be tried.
4. After denial of offence, the trial was begun. In order to prove its case, the prosecution got examined PW1 the complainant, PW2 mother of the prosecutrix, PW3 Dr. Kamal Hal (who conducted medical examination of the prosecutrix), PW4 the prosecutrix, PW5 Constable Harbhajan Singh (Head Mohirror), PW6 Sub Inspector Pradeep Tomar (Investigating Officer), PW7 S.I. Kailash Singh (Investigation Officer) and PW8 Dr. Savita Vats (formal witness).
5. Thereafter, oral and documentary evidence was put to the accused under section 313 Cr.P.C, in reply to which he pleaded that he has falsely been implicated in 3 the case. However, in defence, he neither adduced any oral evidence nor filed any documentary evidence.
6. The trial court, after hearing the parties and upon perusal of evidence led by the parties, passed the impugned judgment and order dated 04.09.2013 convicting and sentencing the accused/appellant, as above.
7. Before any further discussion, it would be relevant to mention here that after seven months of lodging of F.I.R. i.e. on 30.05.2013 the prosecutrix was medically examined by PW3 Dr. Kamal Lal. Medical report (Ext.A3) prepared by the doctor is reproduced as under:-
"No injuries including private parts seen Per vaginal - hymen ruptured p/v admits two finger easily. Slight bleeding per vagina seen.
Vaginal smear taken and sent for pathological examination of any spermatozoa - dead or alive."
8. Thereafter, on 07.06.2013, supplementary report was prepared by the medical officer, which is reproduced as under:
"- No spermatozoa seen in both slides dead or alive."
9. PW3 Dr. Kaml Hal has proved the report Ext.A2 and Ext.A4. She has also stated that sexual intercourse was done with the prosecutrix.
10. PW1 the complainant has stated that on the date of incident his daughter was aged 16 years. On 10.10.2012 she went to ease herself and thereafter did not come back. He tried his best to search her but to no avail.
4He also stated that Roshi and Pawan who are residents of Village Lathardeva had told him that the accused had taken his daughter forcibly.
11. PW2 is the mother of the prosecutrix. She has deposed that the accused had taken his daughter forcibly. She also stated that police had recovered her daughter along with the accused from Kotdwar. She also stated that on the date of incident, her daughter was aged 16 years.
12. PW4 prosecutrix has stated that on 10.10.2012 she was sleeping in the courtyard. In night, she went to ease out herself. She saw that the accused and Roshi were standing outside her house. They put a cloth on her mouth and she became unconscious. She also stated that the accused took her to Kotdwar where the accused had taken a room on rent. She further stated that the accused committed rape with her and had threatened her to kill her, if she would disclose this incident to anybody. She stated that her date of birth is 07.02.1996. She also stated that the accused used to commit rape with her regularly and on her resistance he used to give beatings to her.
13. PW5 Constable Harbhajan Singh is a formal witness. He has proved the Chik F.I.R. Ext.A5 and G.D. entry Ext.A6.
14. PW6 Sub Inspector Pradeep Tomar has stated that on 18.10.2012 he was posted in P.S. Manglore. He was entrusted with the investigation of the case. During the course of investigation, he recorded the statement of witnesses. On the basis of allegation levelled by the complainant against the accused, criminal case was 5 registered against the accused u/s 363, 366A and 376 IPC.
15. PW7 Sub Inspector Kailash Singh has stated that on 16.03.2013 he was entrusted with the investigation of the case. During the course of investigation, he also recorded the statements of witnesses. On 30.05.2013, after receiving information from the informant, he arrested the accused and recovered the prosecutrix. On the same day, he recorded the statements of accused and the prosecutrix and also got recorded the statement of prosecutrix before the Magistrate u/s 164 of Cr.P.C. On 6.6.2013, he got conducted medical examination of the prosecutrix. He stated that on the relevant date and time, the prosecutrix was minor.
16. PW8 Dr. Savita Vats has stated that she was the officiating Principal of Kanya Pathshala Inter College, Manglaur w.e.f 1.4.2012. The prosecutrix had taken admission in Class VI and had studied upto Class X. She stated that as per her school's record, date of birth of the prosecutrix is 7.2.1996, which is mentioned in the school transfer certificate.
17. Mrs. Vijay Laxmi, learned Amicus Curiae submitted that on going through the entire evidence brought on record, it emerges out that the prosecutrix was the consenting party. As such, the trial Court has wrongly held the accused guilty and has wrongly convicted the appellant.
18. Per Contra, learned A.G.A. submitted that the prosecutrix was minor on the date of occurrence as such question of consent does not arise. He has referred a 6 judgment of Hon'ble Apex Court rendered in the case of Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263. Para-22 of the judgment is relevant, which is extracted hereunder:
"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under :
"12. Procedure to be followed in determination of Age. (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) 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 whereof;
(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, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child 7 or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
19. It is settled law that even if consent has been obtained by the accused for sexual intercourse, it will amount to rape, if the victim was incapable of giving a valid consent, as per Section 375 of the I.P.C. Thus, the first thing which is to be borne in mind is that it has to be seen whether the prosecutrix was minor on the relevant date and time.
20. From a perusal of the aforesaid Rules, so framed, and as followed by the Hon'ble Apex court in the judgment (supra), what would be relevant to determine the 8 age of a child is: a) the matriculation or equivalent certificate, if available, and in absence whereof; (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, which will declare the age of the juvenile or child.
21. The Court finds that in the present case, the prosecutrix has studied upto Class V at Primary School Asafnagar, District Haridwar. In order to prove the age of the prosecutrix, school leaving certificate of the prosecutrix from the school first attended and high school marksheet were filed by the prosecution. In the certificate and marksheet, date of birth of the prosecutrix is mentioned as 07.02.1996. Thus, it is established on record that on the date of incident the prosecutrix was about 16 years. As such, consent is immaterial.
22. For the reasons as discussed above, the appeal lacks merit and is hereby dismissed. Impugned judgment and order dated 04.09.2013 passed by 3rd Additional Sessions Judge, Haridwar in S.T. No.232 of 2013, is hereby affirmed.
23. Lower court record be sent back.
(Lok Pal Singh, J.) 12.01.2018 Rajni