Vijay Bahadur vs State Of Uttarakhand

(Per: Hon’ble Siddhartha Sah, J.)

The instant Criminal Jail Appeal has been preferred by the appellant aggrieved against the judgment and order dated 09.02.2018, passed by the learned Special Sessions Judge, Bageshwar in Special Sessions Trial No.13 of 2017, State of Uttarakhand vs. Vijay Bahadur by means of which, the accused/appellant has been convicted under Sections 376(2)(i) of the Indian Penal Code, 1860 (In short “IPC”) and Section 3(a) r/w 4 of the Protection of Children from Sexual Offences Act, 2012 (in short “the POCSO Act”) and has been sentenced to undergo rigorous imprisonment for 12 years along with a fine of Rs.10,000/- under Section 376(2)(i) of IPC and in case of default in payment of fine, to undergo additional one year imprisonment.

This case has its roots in a First Information Report (Exhibit A-2) which was registered at Police Station Kapkot, District Bageshwar on 24.05.2017 at 10:40 A.M. vide GD entry no.15 (Exhibit A-4) on the report of the informant (Exhibit A-3) with the allegations that the minor daughter of the informant, aged 10 years, had gone to fetch water at 11:00 in the morning on 27.04.2017 when the accused called his daughter to his room. On that day, he had not gone to the site for work; he had taken leave on that day. On that day, he called his daughter to his room and caught her hand, then he opened the salwar of his daughter and forcibly made physical relations. When her daughter was shouting then he closed her mouth, and she also bled a lot, and he told her not to reveal it to her father. The accused gave her two five rupee notes. The said incident was seen by his son Surendra Sharma, aged 12 years, and then he told me. Then he inquired from his daughter, and then she narrated the entire incident.

After the lodging of the FIR, the medico-legal examination of the victim (Exhibit A-5) was conducted at District Hospital, Bageshwar, wherein the Medical Officer stated about hymen ruptured, no bleeding. The Chief Medical Superintendent of District Hospital, Bageshwar vide letter dated 01.06.2017 (Exhibit A-7) reported the age of the victim as about 12 years, based on the examination report of the Medical Board.

The statements of the victim were recorded under Section 164 of the Code of Criminal Procedure, 1973 (In short “the Code”) (Exhibit A-1) in the court of Judicial Magistrate, Bageshwar on 27.05.2017, in which the victim deposed that she had gone to fetch water when Vijay uncle (accused) called her and took her inside by holding her hand and opened her salwar. On her shouting, he closed her mouth with his hand and then her brother came. The brother of the victim saw, and he came out, and Vijay Uncle also came out and Vijay Uncle gave her and her brother toffee and rupees. Vijay uncle did galat kaam with her by coming over her. Vijay uncle told her not to reveal anything to Papa. Vijay uncle applied oil on his penis and also saliva and told her brother he is loving her sister. The uncle told not to reveal to anyone. When her father came home, then she and her brother revealed everything to him. She had caught fever, then Papa asked what happened. Then she told that one person did galat kaam; she was bleeding from anus. Vijay uncle did galat kaam with her twice.

The accused was arrested on 03.06.2017 as is evident from arrest memo (Exhibit A-9) and the information of his arrest (Exhibit A-8) was given to his nephew Elis.

During the course of investigation, the Investigating Officer prepared the Naksha Nazri (site plan) (Exhibit A-10) and after finding sufficient evidence, the Investigating Officer submitted a charge sheet under Sections 376 of IPC and Section 3/4 of the POCSO Act against the convict/appellant dated 03.07.2017 (Exhibit A-11). Charges were framed against the appellant under Section 376(2)(i) of IPC and Section 3(a) r/w 4 of POCSO Act vide order dated 21.07.2017. The convict/appellant denied the charges and claimed trial.

During trial, the victim was examined as PW-1, who, on the basis of certain preliminary questions put to her by the trial court, was found capable of deposing before the court. The victim (PW-1) deposed that her parents were working as labourers in Srinagar, Garhwal. Prior to this, her parents were working in Niglidhar (Khati), Kapkot, District Bageshwar. The victim and her brother were residing with their Mummy-Papa there. When she was residing in Niglidhar, Vijay uncle molested her. He touched his penis in her vagina, from which her vagina bled, and there was blood in her stools.

The incident is of 27.04.2017. It was around 10 in the morning when she had gone to fetch water, when Vijay uncle called her near the tap and took her to his tent. After taking her to the tent, he opened her salwar, applied oil on his penis and inserted it in her vagina. On account of illness, her brother was in the tent. He saw the incident being committed with her, but he did not say anything. She revealed the incident after lunch to her Mummy-Papa. She was taken for medical examination to the hospital, where her medical examination was conducted. She had given a statement before the Magistrate. Her statement under Section 164 of the Code was read over to her, which the witness confirmed and identified her signatures on the said statement, which was marked as Exhibit A-1.

In her cross-examination, the victim (PW-1) stated that she does not know how to read because she has forgotten reading; however, she can write her name. She does not know the names of the months. She knows how to see the time and told the time as 12 o'clock by looking at the clock. She resided with her Mummy-Papa in Niglidhar for 8 months. The work of a bridge is going on in Niglidhar, which is being constructed by Koranga uncle, where we had erected a tent. There were five tents there. Our tent was near the bridge. When Mummy-Papa would go for work, she used to cook food. The water tap was opposite our tent, where the bridge was being constructed. From that spot, our tent is visible. There were many labourers working at the bridge. The majority of the labourers are from Nepal, but not from her village. The bridge work belonged to uncle Daanu, but he used to reside in Bageshwar. On the date of the alleged incident, uncle Daanu was not present. On the day of the alleged incident which she is narrating, many labourers were working on the bridge. The bridge work is from 8:00 am to 01:00 pm, and thereafter there would be lunch. After lunch, there is work again. She denied the suggestion that she is deposing falsely at the instance of her Mummy-Papa. She denied the suggestion that no incident happened with her. She denied the suggestion that today she is deposing falsely.

The father of the victim was examined as PW-2, who deposed that prior to Srinagar, he was working at Niglidhar (Khati), Kapkot, District Bageshwar, as a mason. There, they were constructing a suspension bridge. The accused was also working with them. He used to reside there with his wife and children. His daughter was also residing there. The accused did galat kaam with his daughter. This was first told to him by his son; after some time, his daughter told him about it. On that day, the accused had not gone to work and was living in the tent. His tent and our tent were close by. The incident is of 27.04.2017. He also deposed that he had got the report written by Mohan Singh Koranga and proved it, which was marked as Exhibit A-2. Nothing material could be elicited in his cross-examination.

The brother of the victim was examined as PW-3. He deposed that prior to Srinagar, they used to live in Niglidhar (Khati), Kapkot, District Bageshwar, with Mummy-Papa, and his sister also used to live with them. He disclosed the name of the accused present in the court and stated that he committed rape on his sister. He does not remember the date of the incident, but it was 10 in the morning. The accused took his sister inside his house, which was made of tarpaulin. He saw the incident happening and then told his father about it, who had come home at the time of the break. Mother had also gone to work. On that day, he was having a fever, due to which he was in the tent. The police had also recorded his statements. His cross-examination is also not material.

The mother of the victim was examined as PW-4, who stated that prior to Srinagar, she was working as a labourer in Niglidhar (Khati), Kapkot, District Bageshwar. There, they were making a suspension bridge. The accused also used to work with them. She used to stay there with her husband and children. The victim is not her real daughter; she used to live with us. The accused did galat kaam with her daughter. When she came home for lunch, her daughter told her about the thing. On that day, the accused had not gone for work and was living in the tent. His tent was near our tent. The incident is of 27.04.2017. The cross-examination of PW-4 is not significant.

PW-5, Constable Suresh Kumar, deposed that on May 24.05.2017, he was posted as Constable Clerk at Thana, Kapkot, and he had recorded the chick FIR on the basis of the report of the informant (Exhibit A-2), and proved the chick FIR which was marked as Exhibit A-3. He also proved the GD Entry No.15 recorded by him, which was marked as Exhibit A-4.

Dr. Gayatri Pangti was examined as PW6. She deposed that on 24.05.2017, she was posted as Lady Medical Officer in District Hospital Bageshwar. On that day, at 4:00 in the evening, a lady constable brought the victim to her and she conducted her medical examination. As per the victim, her age was 10 years. There were no marks on her body. Hymen was ruptured. She had taken the samples of the victim which were handed over to the police. She had prepared the examination report of the victim which she proved as Exhibit A-5. She deposed that if the accused had committed rape on the victim, then hymen rupture is possible. Her cross-examination is insignificant.

Dr. Devesh Tiwari was examined as PW-7, who deposed that on 01.06.2017, he was posted as Dental Surgeon in District Hospital Bageshwar and he had conducted the dental examination of the victim. Based on that, he estimated her age between 11 and 13 years and gave his opinion in the OPD slip which was marked as Exhibit A-6. He was also a member of the Panel which had given the opinion about the age determination of the victim as between 12 to 13 years. His cross-examination is also not material.

S.I. Banshi Lal was examined as PW-8 who stated that on 24.05.2017, he was posted as S.I. in Thana Kapkot, Bageshwar, and on that day he had received a copy of chick, copy of report which was copied in CD by him, and thereafter deposited the CD in the Thana.

Mohan Singh Koranga was examined as PW-9, who deposed that on 24.05.2017, he was in Bageshwar and on that day, he had written Exhibit A-7. His cross-examination also has no significance.

Sub-Inspector Mohan Chandra Palaria was examined as PW-10, who stated that on 04.06.2017, he was posted as Station Officer, Thana Kapkot, Bageshwar. On 24.05.2017, on the report of the informant, FIR No. 24/2017 under Section 376 IPC and Section 3/4 of POCSO Act was registered at the Thana, and the investigation was conducted by S.I. Banshi Lal. On 25.05.2017, he took over the investigation as Station Officer.

During investigation, he inspected the place of incident and took the evidence and got the statements of the victim recorded in the court under Section 164 of the Code. Also recorded the statements of the mother of the victim under Section 161 of the Code and also recorded statements of other witnesses present on the spot. On 03.06.2017, on the information of the informant the accused was arrested and the arrest memo and information arrest memo was prepared which were proved by him and were marked as Exhibit A-8 and Exhibit A-9 respectively. During investigation, at the pointing out of the victim, he inspected the place of occurrence and prepared the site map which he proved as Exhibit A10.

During investigation, there being no certificate regarding the age of the victim, the medical of the victim was conducted, and blood sample and other samples of the victim were obtained and sent to Forensic Science Laboratory, Dehradun. On 14.06.2017, he handed over the investigation to S.I. Mahendra Prasad. The cross-examination of this witness is also not very relevant.

S.I. Mahendra Prasad was examined as PW-11, who deposed that on 14.06.2017, he was posted as In-Charge Chowki Reema, Thana Kapkot, District Bageshwar and on that day he got orders from higher officials for investigation of FIR No.24/17. During investigation, he perused the prior investigation by the earlier Investigating Officer and studied the entire case diary. During investigation, he recorded the statements of Dr. Devesh Tiwari, Dr. Manish Pant, Dr. Akhilesh Kumar, Lady Constable Hemwanti Karki, S.I. Banshi Lal, S.I. Mohan Chandra Palaria, and other witnesses. On the basis of the evidence available on the file, he submitted a charge-sheet against the accused, which he proved as Exhibit A-11. His cross-examination is also not material.

Dr. Manoj Agarwal, Scientific Officer, Biological D.N.A. Division FSL, Uttarakhand, was examined as PW-12, who deposed that a bundle was received from the court for examination in FSL Dehradun, and the bundle contained samples of the victim. On the DNA examination, the DNA profile of the victim matched with the blood sample of the victim. In the exhibits, semen was not found. In his cross-examination, he deposed that the DNA of the victim and accused did not match.

Devendra Prasad Dosad was examined as PW-13, who deposed that on 06.06.17, he was posted as Lab Technician in District Hospital Bageshwar and on that day he had obtained the blood sample of the victim and the accused on FTA card and had handed it over to the police. Nothing significant is there in his cross-examination.

Constable 140 C.P. Lalit Mohan Negi was examined as PW-14, who deposed that on 06.06.2017, he was posted in Thana Kapkot, Bageshwar. On that day, he had taken the accused and victim to District Hospital Bageshwar for their blood samples. On the order of the court, he had taken the blood sample to FSL Dehradun, which is on the file and contains the acknowledgment of FSL which he proved as Exhibit A-13.

Thereafter, the statements of the accused were recorded under Section 313 of the Code, in which he stated that the prosecution case is wrong. A wrong report and wrong documents have been prepared. To a number of questions, he feigned ignorance. He also stated that investigation was wrongly conducted and wrong statements were recorded, and he was wrongly arrested. The statements of the prosecution witnesses are either wrong or feigned ignorance, and contended that he is innocent and he has been wrongly implicated in the case.

On the basis of the FIR, the documentary evidence and the statements of the prosecution witnesses, the trial court came to the conclusion that it is proved beyond doubt that the accused committed rape upon the victim on 27.04.2017 at 10 o'clock during the day. Vide the impugned judgment and order dated 09.02.2018, the Special Sessions Judge, Bageshwar convicted the appellant under Sections 376(2)(i) and Section 3(a) read with Section 4 of the POCSO Act, and sentenced the appellant to 12 years' rigorous imprisonment along with a fine of Rs.10,000/- under Section 376(2)(i) of IPC.

Aggrieved against the aforesaid judgment and order dated 09.02.2018, the present appeal has been filed before this Court.

Learned Senior Counsel appearing for the convict/appellant would submit that the prosecution case is false and the appellant has been falsely implicated. The report has been lodged almost after one month of the incident. The FSL report does not corroborate the alleged incident. Nothing collected from the spot connects the appellant to the alleged crime. She would further submit that the medical examination report does not support the version of the victim. No blood-stained clothes have been collected in the case.

Learned Senior Counsel for the appellant would further submit that though the victim has narrated the whole story to the parents on the same day, the FIR has not been lodged promptly on the same day. The appellant has been admittedly residing next to the tent of the victim and her parents. The appellant has been arrested almost after two months of the incident. From the statements of PW-2, it is evident that the FIR has been lodged on the dictate of the Village Pradhan.

Per contra, Mr. Pankaj Joshi, learned A.G.A. for the State has contended that the victim was 12 years of age. Her version is reliable and consistent. The brother of the victim is an eyewitness of the incident. The prosecution case is duly proved beyond reasonable doubt, and there is no scope for interference.

Having considered the rival submissions of learned Counsel for the parties and after having gone through the record, it is evident that though the FIR has been lodged belatedly, however, the victim and the eyewitness, the brother of the victim are consistent in their testimonies regarding the date, time, and the manner in which the accused committed rape upon the victim. The FIR version of the victim having gone for fetching water on the morning of 27.04.2017, when the accused called her to his room on a day he had not gone for work and had taken leave, and after having opened her salwar in his tent, he committed rape upon the victim, and the same has also been seen by the brother of the victim. The FIR, the statements of the victim, and the statement of the brother, who is an eyewitness are one and the same, and there is no contradiction or any inconsistency at all in their statements.

It is also clear from the medico-legal examination of the victim that her hymen was found ruptured on her medical examination by lady Medical Officer, who deposed during her examination that she had done the medical examination of the victim and found her hymen ruptured.

The father and the mother of the victim are also consistent in their versions. In fact, the father/informant has also corroborated the statement of the victim, which was revealed to him by the victim on the date of the incident itself that the accused had raped his daughter. First, it was revealed by his son, and after some time, the daughter also revealed it to him. He has been categorical that on that day, the accused had not gone for work, he stayed in the tent, and that tent was near their tent, and the incident was of 27.04.2017. He has also stated that he had got the report written by one Mohan Singh Koranga and submitted it to the Thana. He had submitted the report after 26 days because he did not know so much.

The statement of PW-2/father of the victim is very categorical, natural and convincing. He has clearly stated that he did not know so much that a report can be lodged. That accounts for the delay which has been caused in lodging of the FIR.

So far as the argument on behalf of the learned Senior Counsel for the appellant about the delay in lodging of the FIR of about a month is concerned since PW-2/father of the victim has stated that he did not know that much about the lodging of the FIR, therefore had lodged the report after so many days, hence there is due explanation for the delay in lodging of the FIR. The victim and the informant belong to the labour class and being illiterate, it is not expected of them to have been prompt in lodging the FIR. Thus, the submission made by the learned Senior Counsel for the appellant that the FIR has been lodged with delay does not have material bearing on the case.

So far as the other contentions raised by the learned Senior Counsel for the appellant that nothing has been recovered from the spot so as to connect the appellant to the crime, and that the medical does not support the prosecution version, this also does not appeal much to the Court, inasmuch as upon medical examination of the victim, the lady Medical Officer has duly recorded in the medical examination report that the hymen of the victim was ruptured.

It is also pertinent to mention that the victim and her brother, who has been an eyewitness, are consistent in their stand regarding the manner in which the accused committed rape upon the victim. The testimony is most natural, consistent and convincing. Neither the victim nor the brother of the victim, who is an eyewitness, could be shaken during their cross-examination, and their stand has been consistent, reliable and convincing.

It is also settled law that if the testimony of the victim is found convincing, it can be the sole basis for conviction of the accused in a case of rape. In the present case, not only the statement of the victim is found convincing, reliable and consistent, but also there is another eyewitness of the incident, being the brother of the victim, whose testimony has duly corroborated the statement of the victim and the said eyewitness has been consistent and reliable and could not be shaken during his cross-examination. Moreover, the medical examination report also finds the hymen of the victim ruptured.

In view of the testimony of the victim and the eyewitness (brother) having been found consistent and reliable, the FSL report, which is only corroborative in nature, pales into insignificance and submission of the learned Senior Counsel that FSL report does not support the prosecution version also does not come to the rescue of the appellant. Therefore, the prosecution case is found to have been proved beyond reasonable doubt.

The Special Sessions Judge, Bageshwar in its judgment and order dated 09.02.2018, has taken into consideration all the facts and circumstances of the case, analyzed the entire evidence and the statements of the witnesses and has rightly come to the conclusion that the prosecution has been successful in proving its case beyond doubt.

Having considered the rival submissions advanced by learned counsel for the parties and having revisited the entire record, this Court is of the view that the impugned judgment and order dated 09.02.2018 is a well-reasoned, elaborate and proper judgment and does not warrant any interference so far as conviction is concerned. However, since the appellant has already served sentence of almost more than 9 years and two months, the ends of justice would be served by reducing the sentence from 12 years to 10 years.

Accordingly, the appeal succeeds in part to the extent that the conviction of the appellant is sustained, however, the sentence is reduced to 10 years rigorous imprisonment and fine of Rs.10,000/-. The appellant may serve out the remaining sentence.

Let a copy of this judgment along with the original records be sent to the trial court concerned.