IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1369 OF 2001 (OLD NO.551 OF 1998) Angrej Singh S/o Ajit Singh R/o Village Sarwar Khera Police Station Kashipur, District Udham Singh Nagar ……… Appellant Versus State of Uttarakhand .……… Respondent Dated: September 7, 2010 Mr. Arvind Vashishtha, Advocate for the appellant Mr. Amit Bhatt, Addl. GA 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 28.1.1998 passed by Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No.163 of 1997, State v. Angrej Singh, whereby the learned Special Judge/Addl. Sessions Judge convicted the appellant-accused under Sections 376, 366 and 363 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of seven years u/s 376 IPC, four years R.I. u/s 366 IPC and three years R.I. u/s 363 IPC. All the sentences were directed to run concurrently. 2. Heard learned counsel for the parties and perused the entire material on record. 2 3. In brief, the prosecution case is that Mahendra Singh lodged a First Information Report at P.S. Kashipur, District Udham Singh Nagar against the appellant-accused stating therein that daughter of the complainant, namely, Ratna Kaur, aged about 13 years and 10 months, was missing from the house since 8 PM on 19.11.1996. On search, he could know that the appellant-accused Angrej Singh has taken her away by enticing her and Km. Reema, daughter of Bhajan Singh, resident of same Mohalla has seen her going with the accused. The complainant tried his level best to trace out his daughter but he could not find her and then he lodged the present FIR in the police station on 21.11.1996, which is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared which is Ext.Ka-4. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-5. The investigation of this case was entrusted to PW5 S.I. D.K. Tiwari, who during the course of investigation on 22.11.1996 at 4.30 PM, apprehended the appellant- accused along with Km. Ratna Kaur at Jaspur Bus Stand and prepared a recovery memo thereof, i.e. Ext.Ka-7. Thereafter, the victim was medically examined at L.D.B. Government Hospital, Kashipur by Dr. Leela Joshi (PW4), who conducted the medical examination of the victim and prepared the medical report, i.e. Ext.Ka-3. X-ray of the victim was also conducted, which is Ext.Ka-9. During the course of investigation, the I.O. also recorded the statement of witnesses and on completion of investigation, he filed the charge sheet against the appellant-accused, i.e. Ext.Ka-8. 4. After receiving the charge sheet, learned Additional Chief Judicial Magistrate, Kashipur 3 committed the case to the court of Sessions on 5.3.1997, after giving necessary copies to the appellant-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. On 5.4.1997, learned Special Judge, Nainital framed the charge of offence punishable under Sections 363, 366 and 376 of IPC against the appellant-accused. The charge was read over and explained to the appellant-accused, who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined PW1 Ratna Kaur, victim, PW2 Ms. Reema Kaur, PW3 Mahendra Singh, complainant of the case and father of the victim, PW4 Dr. Leela Joshi, who medically examined the prosecutrix, PW5 S.I. Dhirendra Kumar Tiwari, Investigating Officer of the case, PW6 Dr. G.S. Joshi and PW7 Sanjeev Khare. 6. Thereafter the statement of the appellant- accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, he has not filed any oral or documentary evidence in defence. 7. 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 28.1.1998 convicted and sentenced the appellant-accused as mentioned above. Against the said judgment and order, 4 the appellant-accused has preferred the present appeal. 8. Before any further discussion, it would be pertinent to mention that the prosecutrix Km. Ratna Kaur was medically examined by Dr. Leela Joshi on 22.11.1996, who after the medical examination, prepared the medical report, which is reproduced hereunder:- O/c – Young girl average build axilliary and pubic hair, breast moderately developed, external genital moderately developed. Hymen old healed lat tear, vagina admits two finger easily. Two v/s slides taken sealed and handed over to police. Girl referred to Suptd. L.D. Bhatt for x-ray wrist and elbow joint. Opinion:- No definite opinion could be given regarding rape as the girl is habitual of sexual intercourse. 9. To prove the above-said medical report, the prosecution has examined PW4 Dr. Leela Joshi, who has stated that on 22.11.1996, she was posted as Medical Officer at Government Hospital, Kashipur and on that day, she medically examined Km. Ratna Kaur. On the examination, she found that the girl was aged about 14-15 years. She has proved the report Ext.Ka-3. 10. In order to prove its case further, the prosecution has examined PW1 Km. Ratna Kaur, who has stated that the said incident had taken place nine months back. On that day at 8 PM, appellant-accused came her house and told her that her father is ill and he is calling him at which she accompanied the 5 appellant on his bicycle. She further stated that the accused drove his bicycle towards Mandi to which she objected but accused threatened her by showing knife and pistol. Due to fear, she could not make any noise. The appellant took her to his house and detained her in the house and committed rape on her without her consent. She further stated that the appellant also committed rape with her in a sugar cane field. After three days of kidnapping, police apprehended the appellant along with her at Jaspur Bus Stand. She also stated that she was medically examined and x-ray was also conducted and thereafter she was given in the supardgi of her father. 11. PW2 Km. Reema stated that on the date of incident at about 8 PM she had seen the accused while taking Km. Ratna Kaur with him about which she informed her uncle Mahendra Singh. 12. PW3 Mahendra Singh is the complainant of the case. He has reiterated the version of FIR lodged by him in the police station. He has proved the report Ext.Ka-1. 13. PW5 Sub Inspector Dhirendra Kumar Tiwari is the Investigating Officer of the case. He has proved the Chik FIR Ext.Ka-4 and G.D. entry Ext.Ka-5. During the course of investigation, he recorded the statements of the witnesses, apprehended the appellant-accused Angrej Singh along with the victim Km. Ratna Kaur from Jaspur Bus Stand on 22.11.1996 and prepared the recovery memo Ext.Ka-7, sent the victim for medical examination, got recorded the statement of prosecutrix u/s 164 Cr.P.C. before the Magistrate and 6 thereafter the girl was given in the supardgi of his father for which a supardgainama was prepared, i.e. Ext.Ka-2. On completion of investigation, he filed the charge sheet Ext.Ka-8 against the appellant-accused. 14. PW6 Dr. G.S. Negi was posted as Radiologist at Combined Hospital on 23.11.1996. On that day, x- ray of Km. Ratna Kaur was conducted under his supervision. He has proved the report Ext.Ka-9 and has stated that on the basis of x-ray of the victim, she was 14 years of age. 15. PW7 Sanjeev Khare has stated that on 23.11.1996 he was posted as x-ray technician at Combined Hospital, Jaspur. He has proved the x-ray report Ext.Ka-9. 16. Thereafter the statement of the appellant- accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, he has not filed any oral or documentary evidence in defence. 17. Learned counsel for the appellant-accused argued that the prosecution has been failed to prove its case beyond reasonable doubt under Sections 363, 366, 376 of IPC against the appellant-accused as the victim Km. Ratna Kaur was the consenting party in the whole incident and whatever incident had happened, that was happened on her own consent. I do not find force in the argument put forth by learned counsel for the appellant for the reason that the prosecutrix has specifically stated in her statement that on the date of 7 incident viz. 19.11.1996 at about 8 PM, appellant- accused came her house and told her that her father is ill and he is calling him at which she accompanied the appellant on his bicycle. She further stated that the accused drove his bicycle towards Mandi to which she objected but accused threatened her by showing knife and pistol. Due to fear, she could not make any noise. The appellant took her to his house and detained her in the house and committed rape on her without her consent. She further stated that the appellant also committed rape with her in a sugar cane field. After three days of kidnapping, police apprehended the appellant along with her at Jaspur Bus Stand. She also stated that she was medically examined and x-ray was also conducted and thereafter she was given in the supardgi of her father. The statement of this witness is reliable, believable and inspires confidence and there is no reason to disbelieve her testimony. Further, the evidence of this witness gets corroboration from the statement of PW2 Km. Reema, who has also deposed that on the date of incident the appellant had taken Km. Ratna Kaur along with him on his bicycle. About the age of victim, her father PW3 Mahendra Singh, has stated that she was 13 years and 10 months of age on the date of incident and this fact also finds full corroboration from the medical evidence. PW4 Dr. Leela Joshi has opined that the girl was about 14-15 of years. Similarly, Dr. G.S. Negi, Radiologist has also stated that the girl was about 14 years of age. Besides the above, the I.O. had also filed the school certificate (Ext.Ka-6) issued by the Principal of the school, in which the girl was studying, showing the date of birth of the girl as 10.7.1985, thus, from the school certificate it is also evident that the girl was about 12 8 years of age on the date of incident. Thus, though the girl was considered to be the consenting party but as per the evidence discussed above, she was minor on the date of incident. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of victim Km. Ratna Kaur. In this way, the prosecution has been fully successful in proving its case against the appellant-accused under Sections 363, 366 and 376 of IPC and I am of the considered view that the trial court was correct and justified in convicting the appellant-accused as discussed above and I concur the view taken by the trial court in convicting the appellant-accused as discussed above. 18. Next point argued by learned counsel for the appellant is that the appellant Angrej Singh was juvenile on the date of occurrence. He further stated that the statement u/s 313 Cr.P.C. of the appellant was recorded on 14.1.1998 in which he stated his age to be 16 years. However, the said incident was taken place on 19.11.1996, thus, it is clear that on the date of incident the appellant was about 14 years and 11 months of age, i.e. he was juvenile. 19. Learned counsel for the appellant 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. 9 20. Learned counsel for the appellant 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. He 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. 21. For the reasons as discussed above, the appeal is partly allowed. The conviction of the appellant under Sections 363, 366 and 376 IPC is maintained. But being a juvenile on the date of commission of crime, his 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). He is on bail. He need not surrender unless wanted in any other case. 22. 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.) 7.9.2010 RG