IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.653 OF 2001 (OLD NO.840 OF 1997) 1. Jagtar Singh S/o Jeet Singh 2. Kindu alias Kulwinder Singh S/o Mahendra Singh Both R/o Village Bagwara, P.S. Kashipur, District Udham Singh Nagar ……… Appellants Versus State of Uttarakhand .……… Respondent Dated: August 17, 2010 Mrs. Pushpa Joshi, Advocate for the appellants Mr. Amit Bhatt, Addl. GA for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 13.5.1997 passed by Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No.113 of 1993, State v. Jagtar Singh and another, whereby the learned Special Judge/Addl. Sessions Judge convicted the appellants-accused under Section 376 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced each of them to undergo rigorous imprisonment for a period of ten years with a fine of Rs.10,000/- each and in default of payment of fine, six month’s R.I. was further awarded to each of the appellants-accused. 2. Heard learned counsel for the parties and perused the entire material on record. 2 3. In brief, the prosecution case is that Ram Kumar Yadav lodged a First Information Report at P.S. Kashipur alleging therein that on 29.9.1992 his daughter Km. Geeta was going to her school at karanpur on her bicycle from her house. At about 6:45 AM, when she reached near the sugar cane field of Dewan Chand Taneja, the appellants-accused met her, who stopped her cycle forcibly and dragged her to the nearby sugar cane field of Dewan Chand and both the accused committed rape on her. On hearing the cries of his daughter, Sanjay Kumar Bhardwaj and Kalyan Das reached on the spot. After seeing these persons, the appellants-accused fled away from the place of occurrence. It is stated in the FIR that the complainant was not in the village on the day of occurrence and when he returned back his daughter narrated the incident to him. He stated that the age of his daughter is about 15 years. With the same averments, the present FIR was lodged by the father of the prosecutrix on 30.9.1992 at about 11 AM, which is Ex.Ka-2. On the basis of this FIR, Chik FIR of the case was prepared by Head Constable Ram Avtar Sharma, i.e. Ext.Ka-7. Necessary entries were also made in the GD, carbon copy of which is Ext.Ka-8. The investigation of this case was entrusted to S.I. Gurdayal Singh (PW5). The prosecutrix was medically examined by Dr. Leela Joshi (PW1) on 30.9.1992 at 4:50 PM, who after the medical examination prepared the medical report, i.e. Ext.Ka-1. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site-plan Ext.Ka-3, took into his possession salwar of the victim vide Fard Ext.Ka-4, recorded the statement of witnesses and on completion of investigation, he filed 3 the charge sheet against the appellants-accused under Section 376 of IPC, which is Ext.Ka-6. 4. After receiving the charge sheet, learned Additional Chief Judicial Magistrate, Kashipiur committed the case to the court of Sessions on 2.4.1993, after giving necessary copies to the appellants/accused as provided u/s 207 Cr.P.C. It appears from record that the case was transferred to Additional Sessions Judge, Nainital for hearing and disposal as per law. 5. On 9.6.1993, learned Addl. Sessions Judge, Nainital framed the charge of offence punishable under Section 376 of IPC against the appellants-accused. The charge was read over and explained to each of the appellant-accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Dr. Leela Joshi, who medically examined the prosecutrix and prepared the medical report Ext.Ka-1, P.W.2 Kalyan Das, P.W.3 Ram Kumar Yadav, father of the prosecutrix and complainant of the case, P.W.4 Miss Geetanjali, victim and P.W.5 Gurdayal Singh, Investigating Officer of the case. 7. Thereafter the statements of the appellants- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, they have not filed any oral or documentary evidence in defence. 4 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Special Judge/Additional Sessions Judge, Nainital vide his judgment and order dated 13.5.1997 convicted and sentenced the appellants-accused as mentioned above. Against the said judgment and order, the appellants-accused have preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention that the prosecutrix Km. Geeta was medically examined by Dr. Leela Joshi on 30.9.1992 at 4:50 PM, who after the medical examination, prepared the medical report, which is reproduced hereunder:- “Physical Examination: Young girl of average build. Axillary and pubic hairs well developed. Breast moderately developed. There is abrasion mark on left cheek measuring about 1 cm scab formed. Examination of private parts - labia majora and labia minora thick cutarious moderately developed. Hymen shows lateral tears, oedematous, blue colour. External genitalia tender (painful) on palpation. Vagina is just two finger tight. Cervix directing downward uterus size hypoplastive. Two vaginal smear slides taken from the position fix and send for presence of spermatozoa handed over to police. The girl is referred to Supdt. L.D. Bhatt, Govt. Hospital for X-ray wrist, elbow for determination of her age. Opinion:- 1) The girl has been used for sexual intercourse. 2) Duration of injury is about 2-3 days old.” 5 10. To prove the medical report, the prosecution has examined PW1 Dr. Leela Joshi, who has proved the medical report Ext.Ka-1 prepared by her. 11. To prove its case further, the prosecution has examined PW2 Kalyan Das who has not supported the prosecution case and he has been declared hostile. 12. PW3 Ram Kumar Yadav has stated that the prosecutrix Km. Geeta is his daughter. She was 14 years of age on the date of incident. In the evening when he returned to his house, his neighbour told him about the said incident. He has proved the report Ext.Ka-2 which was lodged by him in the police station. 13. PW4 Km. Geetanjali has stated that on 29.9.1992 she was a student of High School. On that day she was going to her school. When she reached near the sugar cane field of Dewan Chand, the appellants-accused met her. The appellants-accused stopped her cycle by putting a danda in it and fallen her down and thereafter she was dragged to the nearby sugar cane field and rape was committed on her by both the accused one by one. After sometime, Kalyan Singh Taneja and one other person reached there, who saved her from the appellants-accused. The appellants- accused fled away from the place of occurrence. Thereafer Kalyan Singh left her in the house. She narrated the entire incident to her mother. Her father was not in the house. On his returning, she told about the incident to her father. She has also stated that she was medically examined by the doctor. 6 14. PW5 Gurdayal Sharma is the Investigating Officer of the case, who has stated that during the course of investigation, he recorded the statement of witnesses, inspected the place of occurrence and prepared the site-plan (Ext.Ka-3). The salwar of the prosecutrix was also taken by him in his possession and kept in a sealed cover. Recovery memo thereof was also prepared which is Ext.Ka-4. He also obtained the school certificate of the prosecutrix for ascertaining her age, which is Ext.Ka-5. On completion of investigation, he filed the charge sheet, i.e. Ext.Ka-6. He has also proved the Chik FIR Ext.Ka-7 and copy of G.D. Ext.Ka- 8. 15. Thereafter the statements of the appellants- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, they have not filed any oral or documentary evidence in defence. 16. From the evidence discussed above and also the facts and circumstances of the case, it is proved by the prosecution beyond any reasonable doubt that on the date of incident i.e. 29.9.1992 at 6:45 AM when the prosecutrix Km. Geeta was going to her school the appellants-accused met her near the sugar cane field of Dewan Chand. They stopped her cycle by putting a danda in it and fallen her down and thereafter dragged her to the nearby sugar cane field and rape was committed on her by both the accused one by one. In her statement, the prosecutrix has supported the prosecution case and there is no reason to disbelieve her testimony. The evidence of this witness is reliable, 7 believable and inspires confidence. Moreover, the medical evidence has also lent full corroboration to the testimony of the prosecutrix. The statement of Lady Dr. Leela Joshi (PW1) and the report of medical examination of the prosecutrix (Ext.Ka-1) clearly show that the prosecutix was subjected to sexual intercourse forcibly. As such, the offence punishable u/s 376 IPC is proved by the prosecution beyond reasonable doubt against the appellants-accused. The trial court is correct and justified in convicting the appellants- accused u/s 376 IPC and I also concur with the view taken by the trial court in convicting the appellants/accused under the aforesaid section. 17. Smt. Pushpa Joshi, learned counsel for the appellants submitted that the conviction of the appellants u/s 376 IPC on the basis of the above said evidence is justified and she does not want to challenge the conviction part of the appellants. She has confined her argument only up to the point of sentence. It is submitted that the appellants were juvenile on the date of occurrence. She has also filed copy of medical certificates dated 17.3.1993 issued by Chief Medical Officer, Nainital. She submitted that the C.M.O. issued these medical certificates to the appellants regarding ascertaining the age of the appellants after conducting the X-ray of elbow and wrist and declared that both the appellants were about 16 years of age on 17.3.1993. On the basis of these documents, learned counsel for the appellants submitted that as per the medical certificate issued by C.M.O. the appellants were about 16 years of age on 17.3.1993 and the said incident took place on 29.9.1992 and as such the appellants were aged about 15 years and 5 months on the date of incident. 8 18. Learned counsel for the appellants further argued that the provisions of The Juvenile Justice Act, 1986 (hereinafter to be referred as the Act) were applicable in the said area and also in the said district where the crime was committed. Under the said Act, “Juvenile” has been defined u/s 2(h) which reads as under: - 2(h) “juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. 19. Learned counsel for the appellants placed reliance on the judgment of Hon’ble Apex Court in the case of Upendra Kumar v. State of Bihar reported in (2005) 3 SCC 592. She has relied on Para 5 of the said judgment which is also reproduced as under: - 5. The course this Court adopted in Gopinath Ghosh case as also in Bhola Bhagat case was to sustain the conviction but, at the same time, quash the sentence awarded to the convict. In the present case, at this distant time, the question of referring the appellant to the Juvenile Board does not arise. Following the aforesaid decisions, we would sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Sessions, as affirmed by the High Court, at the same time, however, the sentence awarded to the appellant is quashed and the appeal is allowed to this extent. Resultantly, the appellant is directed to be released forthwith if not required in any other case. 20. For the reasons as discussed above, the appeal is partly allowed. The conviction of the appellants u/s 376 IPC is maintained. But being a juvenile on the date of commission of crime, their sentence as awarded by learned Special Judge/Additional Sessions Judge, Nainital is set aside following the Apex Court judgment in case of Upendra Kumar Vs. State of Bihar (Supra). They are on bail. 9 They need not surrender unless wanted in any other case. 21. A copy of this judgment along with the record be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) August 17, 2010 RG