Ram Prakash Rathour & Others vs State of Uttarakhand

V.K. Bist, J.

Criminal Appeals have been preferred under Sections 374(2) of Code of Criminal Procedure, 1973 (for short “Cr.P.C.â€) against the common

judgment & order dated 09.04.2014, passed by the learned Additional Sessions Judge, Khatima, District Udham Singh Nagar, in Sessions Trial No.

307 of 2013 whereby the accused-appellants, namely, Ram Prakash Rathour and Prakash Chand have been convicted under Sections 376D & 323 of

I.P.C. Each one of the convicts has been sentenced to undergo rigorous imprisonment for 20 years and directed to pay fine of Rs. 25,000/- each under

Section 376D of I.P.C., in default of payment of which further simple imprisonment of one year each was awarded. Both the convicts were further

sentenced to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs.1,000/-under Section 323 I.P.C., in default of which

further simple imprisonment of one month was awarded. All the sentences were directed to run concurrently.

Heard learned counsel for the appellants, learned Deputy Advocate General for the State of Uttarakhand and carefully perused the lower court

record.

Prosecution story, in nutshell, is that on 28.03.2013, (complainant/ victim) lodged a complaint at Police Station Khatima stating therein that she is a

resident of village Teraghat. On 26.03.2013 at about 07:45 p.m., she alongwith one Vishvanath Nikunj, R/o Mukta Colony, P.S. Newria, Pilibhit had

gone to purchase the mosquito coil, when they were returning after purchasing Mortin (mosquito repellent). As soon as they reached in front of the

orchard of Bhagiram; all of a sudden, Prakash Chand, Ram Prakash and Dheeraj residents of the same village, dragged her towards the orchard and

torn her clothes. Victim shouted and when his brother resisted this act, accused persons assaulted his brother. On raising alarm, many a people

reached there and Srikrishna resident of the same village saved her life. The accused persons fled away from the spot. The said complaint was

registered at G.D./ Case Crime No. 69 of 2013 for the offences punishable under Section 354, 323 of I.P.C., against the accused Prakash Chand,

Ram Prakash & one Dheeraj.

Investigation of the case was entrusted to S.S.I. Harish Bahadur Sen, who investigated the case and after conclusion of investigation, submitted

charge sheet against the accused-appellants for their trial in respect of offences punishable under Sections 376D and 323 of I.P.C. However, the third

accused, namely, Dheeraj was found juvenile and a separate charge sheet was filed against him & his case was referred to the Juvenile Justice

Board, Rudrapur.

The learned Judicial Magistrate, on receipt of the charge sheet, committed the case to the court of Sessions for trial on 28.09.2013.

Learned Session Judge, Udham Singh Nagar, framed charge of offences against the appellants punishable under Section 376D and 323 of I.P.C, to

which accused pleaded not guilty and claimed to be tried.

Prosecution got examined nine witnesses. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which

they alleged that the evidence adduced against them are false. After hearing the parties, the trial Court found both the accused-appellants guilty of

charge of offences punishable under Section 376D & Section 323 of I.P.C., and convicted them accordingly.

Medical Examination of the prosecutrix was conducted on 03.04.2013 at 02:00 p.m. In the medical report (Exhibit A-5) the Medical Officer opined

as under:

O/E Brest well developed, Auxiliary and pubic-hairs well developed labia majora and minora well developed. Hymen torned and healed. Vagina

adjusting two fingers easily. Vagina smear taken in two slide and send to pathologist at C.H.C for detection of spermatozoa. There is no sign of injury

in cliotra organ and other parts of body. Her C.M.P was 5th of February, 2013. Girl is sent to J.L.N Hospital, Rudrapur for determination of age for x-

ray of elbow.

In the supplementary report (Exhibit A-8) the Medical Officer opined as under:

According to medical report of Chief Medical Officer Udham Singh Nagar girl’s age is about 16 years. Veginal smear report: No spermatozoa

seen.

Opinion- According to x ray report her age is approx. 16 years. There is no sign of recent sexual intercourse but the girl is habitual to intercourse.

The statement of the prosecutrix was recorded under Section 164 of Cr.P.C. on 09.04.2013. In her statement, she stated that one day before Holi

festival i.e. on 26th April, 2013 at about 08:30 p.m., the prosecutrix and her brother Viswajeet went to the shop of Gaju to buy mortein. Three boys

came from behind and snatched money from Viswajeet and assaulted him with kicks and fists. She stated that the marpeet was committed near the

orchard. The three boys dragged them towards mango orchard and after committing marpeet snatched money from Viswajeet, who fled away from

there. In her statement, she further stated that two boys forcibly opened her jeans and committed rape with her. Third boy was accompanying them.

In all there were four boys including one dwarf. She further stated that she identified two accused out of three. The prosecutrix returned home at

09:00 p.m. and narrated the story to her mother and elder sister on the same day. Police came in the night in her house and she disclosed that the third

boy of short height was her neighbour. She also narrated the name of two accused as Dheeraj and Ramprakash. She further stated that Prakash

Chand was accompanying the two accused. Srikrishan (one with short height) has seen the entire occurrence. Dheeraj snatched money from

Viswajeet.

The prosecution examined P.W.1 (prosecutrix), P.W. 2 (father for the prosecutrix), P.W. 3 (eye witness), P.W. 4 Srikrishna (another eye

witness), P.W. 5 Dr. Sunita Chuphal (who conducted medical examination of the prosecutrix); P.W. 6 HC Bhuwan Kohli (who prepared chik F.I.R.),

, P.W. 7 Lipan Viswas (relative of the prosecutrix), P.W. 8 Satish Chandra Gupta, (Principal of Government Higher Secondary School who proved

the date of birth of the prosecutrix) and P.W. 9 S.S.I. Harish Bahadur Sen (Investigation Officer).

We have heard learned counsel for the parties and perused the entire record.

On perusal of the complaint, it would reveal that the prosecutrix has not described herself as minor. On the averments, made in the complaint, the

case under Sections 354 and 323 of the I.P.C. was registered against three of the accused. On further perusal of the complaint it would reveal that

initially the complaint was written on 28.01.2013; but, by overwriting 28.01.2013 has been converted to 28.03.2013. The case was registered as F.I.R.

No. 69 of 2013 on the complaint itself but no such F.I.R. is placed on record as per the provisions contained under Section 154 of the Cr.P.C. Section

154 of the Cr.P.C. reads as follows:

“154. Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in

charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information,

whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book

to be kept by such officer in such form as the State Government may prescribe in this behalf.

Provided that if the information is given by the woman against whom an offence under Section 326A, section 326B, section 354, section 354A, section

354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian

Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer, or any woman

officer.

Provided further that-

(a) in the event that the persons against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C,

section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to

have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police

officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an

interpreter or a special educator, as the case may be;

(b) the recording of such information shall be videographed;

(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as

soon as possible.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may

send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information

discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer

subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in

relation to that offence.â€​

Provisions of Section 154 of Cr.P.C. are mandatory in nature. Written F.I.R. has not been registered as per the provisions contained under Section

154 of the Cr.P.C. Thus, it seems to this Court that the complaint itself, which was registered as F.I.R. No. 69 of 2013 under Section 354, 323 I.P.C.

at G.D. No. 9 is ante dated.

From perusal of the complaint it would reveal that no allegations of committing rape have been levelled against any of the accused persons. The

F.I.R. was lodged against three persons, namely, Prakash Chand, Ram Prakash and Dheeraj. In the statement recorded under Section 164 Cr.P.C.,

the prosecutrix has alleged that the police came to her house in the night on the same day of incident at about 09:00 p.m. She further stated that the

names of the persons, who committed rape with her are Dheeraj and Ram Prakash; but, in the statement made before the Court; she has stated that

the accused-appellants Prakash Chand and Ram Prakash Rathour committed rape with her whereof Dheeraj was standing near them. In her

statement, she further deposed that Dheeraj did not commit rape with her.

Learned counsel for the appellants would submit that the appellants have falsely been implicated by the prosecutrix. The prosecutrix did not

leveled any allegations in the complaint, which was though written on 23.01.2013 and subsequently date was changed as 28.03.2013 allegedly

registered as GD No. 9 at 10:50 a.m. on 28.03.2013, which was lodged under section 354 & 323 I.P.C. It is further contended that when the

complaint was made, the prosecutrix did not mention that she is minor. It is further contended that school leaving certificate has been placed on record

as exhibit No. 10-B, in which the date of the prosecutrix is mentioned as 22.03.1999. On perusal of school leaving certificate, it would reveal that

22.03.1999 has been mentioned with different ink and pen in column no. 3 of the school leaving register and the registration no. 1259 is also mentioned

by different ink. The prosecution has not stated that it is the first attended school by the prosecutrix. The incident allegedly occurred on 23.03.2013.

Though, father of the prosecutrix has deposed the same story; but the P.W. 3, maternal uncle of the prosecutrix, tried to depose that the alleged

incident occurred on 26.03.2013.

Learned counsel for the appellants further submitted that in the complaint itself, the name of the Srikrishna has been mentioned. Srikrishna was the

person, who was present at the time of incident; but, he did not support the prosecution story. Though he was declared hostile but from a careful

perusal of the statement of P.W. 4 Srikrishna, it would reveal that in any manner, he has not supported the prosecution story. P.W. 5 Dr. Sunita

Chauphal, who conducted the medical examination, submitted that there was no mark of injury on the private part of the prosecutrix. She stated that

the hymen was torned and two fingers can enter easily; but, no spermatozoa were found. It is further stated that no clothes were given to the

Investigation Officer to prove that any blood stain or spermatozoa of accused persons were there. It is further contended that the appellant Ram

Prakash was arrested; but, his medical examination was not conducted.

It is further submitted by the learned counsel for the appellants that the prosecution failed to prove its case beyond reasonable doubt against the

accused-appellants.

It is trite that the Court shall presume the innocence of accused, unless the prosecution proves its case beyond reasonable doubt. After hearing the

learned counsel for the parties and from the perusal of the impugned judgment it would reveal that the learned Additional Sessions Judge failed to

consider the prosecution case in its entirety and has believed on the prosecution story as truth without recording any reasons in regard to the

improvement of the prosecution case after lodging the complaint. The learned Additional Sessions Judge also failed to notice the fact that the F.I.R.

was not lodged in view of Section 154 of the Cr.P.C.

Thus, in view of this Court, the learned Court below has wrongly convicted the appellants merely on the basis of the statement made before the

Court. The learned trial Court has placed reliance on the judgment of Hon’ble Apex Court in the matter of State of Uttar Pradesh Vs. Chhotelal

reported in (2011) 2 SCC 550 & Pushkar Singh Vs. State of Uttarakhand reported in (2012) 78 A.C.R. 703. The ratio of both the judgments is not

applicable in the present case. No reasons have been recorded by the learned Court below in convicting the appellant. Therefore, in view of this Court

the learned trial Court has committed illegality in convicting the appellants for the offences punishable under Sections 376D & 323 of I.P.C.

From careful perusal of the complaint, statement of the prosecutrix, medical report and statement of father & maternal uncle of the prosecutrix, it

is evident that after the complaint/ First Information Report, the prosecution has improved its case. Though the F.I.R. is not an encyclopedia; but, fact

remains that the complaint was lodged after two days of the alleged incident by the prosecutrix herself mentioning all the details of the appellant.

Thereafter, her statement under Section 164 Cr.P.C. was recorded after 13 days. Her statement cannot be considered as trustworthy. Similarly, if an

offence, was committed by the accused-appellants with the victim who claims herself to be minor. As per prosecution case, police reached on the

same day at the house of the prosecutrix. P.W. 3 & P.W. 4 were also present at the place of occurrence. Both of them did not try to save her from

the accused-appellants, which again create a doubt on the prosecution story. A perusal of the prosecutions story would reveal that the father of the

prosecutrix was present in the house on the date of alleged incident; but he did not lodge any first information report in this regard. No explanation has

been given by the prosecution in its case whereof an offence was committed with the minor girl. Why father, mother, elder sister and maternal uncle

have not lodged the first information report. It is also not explained by the prosecution why the F.I.R. was not registered in view of Section 154 of the

Cr.P.C. and G.D. entries have been shown on the complaint itself. The prosecution has also failed to mention the correct date of incident. What was

the occasion for not lodging the F.I.R. and in making correction in the date on the complaint? Therefore, in view of this Court, the prosecution has

failed to prove its case beyond reasonable doubt against the accused-appellants.

Considering the entire material available on record, we are of the view that discrepancies as discussed above are sufficient to reach to the

conclusion that prosecution has miserably failed to prove its case beyond reasonable doubt and the accused-appellants are entitled to benefit of doubt.

Consequently, both the appeals are allowed. Impugned judgment and order dated 09.04.2014; passed by the learned Additional Sessions Judge,

Khatima, District Udham Singh Nagar, in Sessions Trial No. 307 2013 is hereby set aside. Appellants are acquitted from the charge framed against

them. Accused-appellants are in jail. Their bail bonds are cancelled and sureties stands discharged. They be set at liberty forthwith if not required in

connection with any other crime.

Let the lower court record be sent back and copy of this judgment be also sent to the Superintendent of jail concerned where the appellants are

presently lodged.

After completion of the judgment it is observed that the learned Additional sessions Judge, Khatima, District Udham Singh Nagar Mr. Shamsher

Ali has disclosed the name of the prosecutrix P.W. 1, P.W. 2 father of the prosecutrix.

The Parliament in its wisdom has also made the penal provision by enactment of Section 228A of IPC. Section 228A of IPC is being extracted

here-in- below:

“[228A. Disclosure of identity of the victim of certain offences etc.- (1) whoever prints or publishes the name or any matter which may make

known the identity of any person against whom an [offence under Section 376, Section 376A, Section 376B, Section 376C or Section 376D or Section

376E] is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either

description for a term which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section(1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such

printing or publication is-

(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting

in good faith for the purposes of such investigation; or

(b) by, or with the authorization in writing of, the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim: Provided that no such

authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognized

welfare institution or organization. Explanation- For the purposes of this subsection, “recognized welfare institution or organization†means a social

welfare institution or organization recognized in this behalf by the Central or State Government.

This Court had issued a direction to the Registrar General of this Court to place a copy of the order dated 27.10.2017, passed by this Court, along

with judgment dated 01.9.2017 passed by Sessions Judge, Tehri Garhwal in S.T. No.47 of 2016 before Hon’ble the Chief Justice for taking

necessary action. The intent of the Court was that a circular be issued in this regard to all the Trial Judges conducting the matters pertaining to sexual

offences against children under POCSO Act. Pursuant to the directions issued by this Court the Registrar General of this Court vide letter no.

4495/UHC Criminal dated 11.04.2018, circulated the certified copy of the order of this Court dated 28.12.2017, passed in Criminal Appeal no. 388 of

2017, titled as Ashish Vs State of Uttarakhand for information and necessary compliance. Copy of the order passed by this Court in Criminal Case no.

388 of 2017 had already been circulated to all the District and Session Judges and the Judicial Officers of the State of Uttarakhand, but the Special

Judge (POCSO) / Addl. Sessions Judge, Dehradun did not take care of the circular / guidelines issued by this Court as mentioned above. On the

perusal of the impugned judgment, it would reveal that the trial court has mentioned the name of the victim, father of victim and name of relative of the

victim, whereas the name of the relatives, name of the complainant, name of the father, name of the mother, name of the prosecutrix should not to be

disclosed in view of directions issued by Hon’ble Supreme Court. The Hon’ble Apex Court has issued directions to all the Judges dealing with

cases pertains to outrage the modesty that name of the prosecutrix, parents and relatives should not be disclosed. Disclosing the name of the

prosecutrix, relatives ruin the career and reputation of the prosecutrix and her family. The Parliament by way of Amendment inserted in Section 228A

IPC. Section 228 prescribed a punishment of imprisonment of either description for a term which may extend to two years and shall also be liable to

fine on disclosure being made of identity of victim in respect of aforementioned offences. In view of this Court, the Trial Judge has failed to notice the

provisions of Section 228A of IPC, which is not expected from a Judicial Officer. This Court on several occasions has noticed that most of the judges

dealing with the matters relating to offences punishable under Section 376 IPC and under POCSO Act are not taking care of the matter properly. The

Hon’ble Apex Court has repeatedly commented on the working style of the trial judges and even circulars were issued to the respective High

Courts that the High Courts should also be vigilant not to disclose the name of the prosecutrix and her relatives, but despite the direction issued by the

Hon’ble Apex Court and this Court, the Presiding Officers conducting the cases pertaining to offence punishable under Section 376 IPC and

under the provisions of POCSO Act are not taking care of it.