IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.872 OF 2001 (OLD NO.819 of 1993) Padam S/o Ballu Harijan R/o Nangla, China, P.S. Manglore, District Haridwar ……… Appellant Versus The State ……… Respondent Dated: October 20, 2008 Sri Umesh Chand Belwal, learned amicus curiae for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal preferred by the appellant 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 22/24.03.1993 passed by Sessions Judge, Haridwar in Sessions Trial No.210/92, State Vs. Padam, whereby the learned Sessions Judge convicted the accused/appellant for the offence punishable under Sections 376/324 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- u/s 376 I.P.C. and one year’s R.I. u/s 324 I.P.C. It was also directed that both the sentences shall run concurrently. In default of payment of fine further two year’s R.I. was awarded. 2. I have heard Sri Umesh Chand Belwal, learned amicus curiae for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that Suresh lodged a F.I.R. in the Police Station Gangnahar with the averment that her daughter Menka aged about 3 years 2 went to the wheat field of Gunny for a natural call. When she did not come back to the house for a long time then he along with Inder, Kaka, Satish, Surajbhan, Ranbeer and Ishwar Chand started searching her. Then they saw that the appellant/accused Padam along with Menka were laying in the field. Menka was unconscious. It was 2:30 P.M. He further averted that the appellant/accused Padam committed rape with her daughter and he has bitten her both the chicks with his teeth. Then the complainant Suresh along with Inder and other people caught hold the appellant/accused and took him to the police station along with her daughter. He admitted her daughter Menka in the Government Hospital, Roorkee. With the same averments, F.I.R. Ext.Ka-1 was lodged by P.W.1 Suresh. On the basis of this F.I.R., Chik F.I.R. Ext.Ka-4 was prepared by Head Moharrir Balbir Singh on 19.03.1992 at 5 P.M. The necessary entry was also made in the General Diary, copy of which is Ext.Ka-5. Victim Menka was medically examined by P.W.7 Medical Officer Dr. Vinod Tyagi on 19.03.1992 at 4:20 P.M. and the injury report is Ext.Ka-8. The victim was also medically examined by P.W.6 Medical Officer Dr. Anjali Srivastava on 19.03.1992 at 5:30 P.M. and she prepared the injury report Ext.Ka-7. Appellant/accused Padam was medically examined by P.W.7 Medical Officer Dr. Vinod Tyagi on 19.03.1992 at 6:50 P.M and he prepared the injury report Ext.Ka-9. The appellant/accused was also medically examined by P.W.5 Medical Officer Dr. Surendra Goel on 20.03.1992 at 1:00 P.M. and the injury report is Ext.Ka-6. Investigation of this case was entrusted to P.W.8 Station Officer Sri Ghanpal Singh, who during the course of the investigation took the underwear and bloodstained trousers into his possession and prepared a FARD Ext.Ka-2. The I.O. also inspected the place of occurrence and prepared the site-plan Ext.Ka-10. 3 During the course of investigation, the I.O. recorded the statement of the witnesses and after completing the investigation, he submitted the charge sheet Ext.Ka-11 against the accused/appellant u/s 308/376/324 I.P.C. 4. Learned Ist Additional Munsif Magistrate, Roorkee committed the case to the Court of Sessions on 10.07.1992, after giving necessary copies to the accused as required u/s 207 Cr.P.C. 5. On 9.10.1992, learned Sessions Judge, Haridwar framed the charge of offence punishable under Sections 376, 308 and 324 I.P.C. against the appellant/accused. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Suresh-complainant and father of the victim Menka, P.W.2 Ranbeer Singh-eyewitness, P.W.3 Inder-eyewitness, P.W.4 Constable Phool Singh, P.W.5 Dr. Surendra Goel, who medically examined the accused Padam on 20.03.1992 at 1 P.M., P.W.6 Dr. Anjali Srivastava, who medically examined the victim on 19.03.1992 at 5:30 P.M., P.W.7 Dr. Vinod Tyagi, who medically examined the victim on 19.03.1992 at 4:20 P.M. and the accused/appellant Padam on 19.03.1992 at 6:50 P.M., P.W.8 Station Officer Ghanpal Singh, who has investigated the case. 7. After that the statement of the accused/appellant was recorded under Section 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made 4 against him. However, in defence, he did not produce any oral or documentary evidence. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge vide his judgment and order dated 22/24.03.1993 convicted the accused/appellant for the offence punishable u/s 376/324 I.P.C. and sentenced him to undergo R.I. for a period of ten years and a fine of Rs.10,000/- u/s 376 I.P.C. and one year’s R.I. u/s 324 I.P.C. It was also directed that both the sentences shall run concurrently. In default of payment of fine further two year’s R.I. was awarded. 9. Before further discussion, it is pertinent to mention the injuries found on the body of the victim Km. Menka, who was medically examined by P.W.7 Dr. Vinod Tyagi on 19.03.1992 at 4:20 P.M. The injuries found on the body of the victim is reproduced as under:- (i) An abraded contusion 2cm x 2cm circular in shape with teeth mark on the left side face 2cm in front of left ear (ii) An abraded contusion 3.5cm x 3cm on the left side face with teeth marks 3cm below from injury no.1 (iii) Lacerated wound 2.5cm x 0.3cm x 0.5cm on the right side face 4cm below and away from outer end of right eye soft red clot present, semicircular in shape (iv) Multiple abrasions with contusion in an area of 6cm x 5cm on the right side face 2cm below and in front of injury no.3, there present number of teeth marks (v) Lacerated wound 5cm x 1cm x 0.7cm on the right side face, semicircular in shape, 1.5cm 5 away from right angle of mouth, fresh bleeding present with swelling of upper lip (vi) Traumatic swelling of whole of upper eye lid of right eye and red contusion 3cm x 2.5cm on the outer end of right eyebrow and forehead Bleeding from vagina present for which patient is referred to Gynaecologist, Civil Hospital, Roorkee, District Haridwar for expert opinion. Opinion:- Injury nos.1, 2 and 4 are caused by friction against hard object while injury nos.3, 5 and 6 are caused by blunt object. Injury no.6 is kept under observation, advised X-Ray. All other injuries are simple in nature, duration fresh. 10. To further prove its case, the prosecution has examined P.W.7 Dr. Vinod Tyagi, who has stated that on 19.03.1992 he was posted as Medical Officer in Roorkee Hospital. On that day at 4:20 P.M. Km. Menka was medically examined by him and he found the above noted injuries on her body. At the time of the medical examination, he prepared the injury report Ext.Ka-8 and he opined that all injuries could be possible on 2-2:30 P.M. on the same day. He further opined that injury nos.1, 2 and 4 could possibly be caused by friction against hard object and injury nos.3, 5 and 6 could be caused by blunt object. He further stated that on the same day at 6:50 P.M., appellant/accused Padam was also medically examined by him and he found the following injuries on his body, which is reproduced as under:- (i) Traumatic swelling 10cm x 8cm on the forehead with black eye both side 6 (ii) Lacerated wound 3cm x 1cm x 0.7cm on the left lower lip with fresh bleeding (iii) Lacerated wound 1.5cm x 0.7cm x 0.5cm on the inner side of right lower lip with fresh bleeding He further opined that the injured was in sense and restless. Pulse was 114/min., respiration rate 22/min., temperature 99°F, Eyes-B/L conjunctival, congestion present, muscular control was not perfect, gait staggering, smell of breath-smell of alcohol present. The injured was complaining the body pains. All the injuries were caused by blunt object, injury no.1 was kept under observation and advised X-Ray. Injury nos.2 and 3 were simple in nature and were fresh. Patient has consumed alcohol and was in toxic effect at the time of medical examination. He further opined that the injuries could be possible at 2-2:30 P.M. on the same day. The injury report Ext.Ka-9 was prepared by him at the time of medical examination. 11. Victim Km. Menka was also medically examined by P.W.6 Dr. Anjali Srivastava on 19.03.1992 at 5:30 P.M. The injuries found on the body of the victim is reproduced as under:- (i) Lacerated wound about 1/2cm in length on lateral side of left labia minora wound, no fresh bleeding (ii) Lacerated wound about 1/2cm in length present on lower end of introitus, no fresh bleeding (iii) Lacerated wound present about 3/4cm present on right lateral side of hymen, hymen bruised but not torn, no fresh bleeding 7 Injury report Ext.Ka-7 was prepared by P.W.6 Dr. Anjali Srivastava at the time of medical examination. 12. To prove this injury report, the prosecution has examined P.W.6 Dr. Anjali Srivastava, who has proved the above injuries and has stated that the injury report Ext.Ka-7 was prepared by her at the time of medical examination. She further stated that it is possible that the penis was penetrated in the vagina of the victim but the penetration was slight because the hymen was bruised and not torn. The other injuries in the private parts were possible due to friction of the penis. The injuries were found fresh by Dr. Vinod Tyagi and she has examined the victim on the continuation of Dr. Vinod Tyagi. The injuries in the private parts could possibly be caused at 2-2:30 P.M. on the same day. 13. Accused Padam was also medically examined by P.W.5 Dr. Surendra Goel on 20.03.1992 at 1 P.M. The injuries found on the body of the accused is reproduced as under:- (i) An abraded contusion 0.3cm x 0.1cm over the proximal part of the glans penis on the dorsal aspect, bluish black in colour Opinion:- Injury is caused by some hard and blunt object on lay friction and is simple and about one day old. Injury report Ext.Ka-6 was prepared by him at the time of medical examination. 14. To prove this injury report, the prosecution has examined P.W.5 Dr. Surendra Goel, who proved the above noted injury and has stated that the injury report Ext.Ka-6 was prepared by him at the time of medical 8 examination. He opined that the injury could be possible on 19.03.1992 at 2-2:30 P.M. 15. To further prove its case, the prosecution has examined P.W.1 Suresh (complainant and father of the victim), who has stated that the accused Padam is known to him. He further stated that on the date of the incident her daughter was three years’ old. Adjoining to his house there is wheat field of Gunny. On the date of the incident, it was Holi festival and he along with Inder, Ranbeer, Satish, Kaka, Surajbhan and son of Sumeru were playing Holi in the courtyard. At about 2 P.M., his daughter Menka went for a natural call in the field of Gunny, when she did not come for about ten minutes then they started searching her. At about 2:30 P.M. they reached in the wheat field of Gunny where they saw that the appellant/accused Padam was committing rape with Menka and was cutting her chicks with his teeth. Both were naked. Menka was unconscious at that time. All the persons caught hold the accused. Her condition was serious. Then they have taken Menka and the accused to the hospital and the girl was admitted there where she was medically examined. Thereafter in the hospital he dictated the report of the incident to Ranbeer. That report is Ext.Ka-1. After that he lodged the report in the police station and handed over the accused to the police. Trousers Ext.1 and underwear Ext.2 were taken into possession by the police and a FARD Ext.Ka-2 and specimen of seal Ext.Ka-3 was prepared. The evidence of this witness gets corroborated from the statement of P.W.2 Ranbeer Singh and P.W.3 Inder. 16. P.W.4 is Constable Phool Singh. He has stated that he is familiar with the signatures and handwriting of Head Constable Balbir Singh, who has prepared the Chik 9 F.I.R. Ext.Ka-4 and made the entry in the G.D. Copy of the G.D. is Ext.Ka-5. 17. P.W.8 is S.O. Ghanpal Singh (Investigating Officer of this case), who has stated that on 19.03.1992 he was posted as Sub Inspector in the Police Station Gangnahar. The case was registered in the police station in his presence. Chik F.I.R. Ext.Ka-4 was prepared by Head Constable Sri Balbir Singh. During the course of the investigation, he inspected the place of occurrence and prepared the site-plan, i.e., Ext.Ka-10. He also recorded the statement of the witnesses. After completing the investigation, he filed the charge sheet against the accused/appellant under Sections 308/376/324 I.P.C. That charge sheet is Ext.Ka-11. 18. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who has denied the allegation made against him. However, in defence, he did not produce any oral or documentary evidence. 19. From the evidence discussed above, it is proved by the prosecution beyond reasonable doubt that on 19.03.1992 at about 2:30 P.M. in the wheat field of Gunny, Village Rampur, P.S. Gangnahar, the appellant/accused committed rape with Menka aged about three years’ and was caught red-handed by P.W.1 Suresh (complainant and father of the victim Menka), P.W.2 Ranbeer Singh, P.W.3 Inder and other people, who were gathered at the place of occurrence. After that the accused Padam was taken to the police station where F.I.R. Ext.Ka-1 was lodged by P.W.1 Suresh. The evidence of P.W.1 Suresh gets 10 corroborated from the statement of P.W.2 Ranbeer Singh, P.W.3 Inder, P.W.5 Dr. Surendra Goel, P.W.6 Dr. Anjali Srivastava, P.W.7 Dr. Vinod Tyagi and also from the injury reports Ext.Ka-6, Ext.Ka-7, Ext.Ka-8 and Ext.Ka-9. 20. Thus from the evidence discussed above, the prosecution has proved the case against the appellant/accused Padam under Sections 376 and 324 I.P.C. The trial court is justified in convicting and sentencing the accused/appellant as above. I also concur with the view taken by the trial court. 21. Sri Umesh Chand Belwal, learned amicus curiae for the appellant submitted that as per the evidence discussed above, the prosecution has proved the case against the appellant u/Ss 376/324 I.P.C. and the sentence awarded to him is also justified as per the law. He further submitted that he does not want to press the appeal as the appeal has rendered infructuous and he prayed that the appeal may be dismissed as infructuous. He further submitted that the appellant/accused has been released from the jail after completing his sentence as awarded by the trial court and he has also deposited a fine of Rs.10,000/- Learned brief holder for the State has also conceded to this point and for that he has submitted the letter dated 18.10.2008 of the Superintendent, District Jail, Haridwar and has stated that the appellant/accused has been released from jail after completing his sentence on 10.05.2000 and the appellant has also deposited a fine of Rs.10,000/-. 22. For the reasons recorded above, the appeal is liable to be dismissed and the appeal is dismissed as such. 11 The conviction and sentence of the accused/appellant as awarded by the trial court is hereby confirmed. 23. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned. (Dharam Veer, J.) 20.10.2008 RG