IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1441 of 2001 (Old No.214 of 1996) Chatar Singh …….….…. Appellant Versus The State …………… Respondent Dated: June 25, 2009 Sri Lokendra Dobhal, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State/respondent 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 02.02.1996 passed by Special Judge, Tehri Garhwal in Special Trial No.04 of 1993, State Vs. Chatar Singh, whereby the learned Special Judge has convicted the appellant/accused under Sections 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years’ R.I. with fine of Rs.3,000/- and in default of payment of fine, one year further R.I. was awarded. Appellant/accused was further sentenced to one-year rigorous imprisonment under Section 3(1)(x) of the Scheduled Tribes & Scheduled Castes [Prevention of Atrocities] Act, 1989 [hereinafter to be referred as the Act]. Both the sentences were directed to run concurrently. 2. I have heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that P.W.2 Tumma Ram lodged an FIR stating therein that he had had an agricultural field near Soni School where his daughter Km. Saraswati used to work and appellant/accused Chatar Singh was a teacher in that School. It was further stated that the appellant/accused committed rape with his daughter Km. Saraswati in the field. In the month of February, complainant’s daughter complained pain in her stomach on which the complainant took her to the doctor where the doctor informed that she is carrying a fetus in her womb. Thereupon, the complainant and his wife enquired from the victim then she disclosed that appellant/accused Chatar Singh committed rape with her in the month of September, 1992 while she was working at her field situated near Soni School. She also stated that appellant/accused also threatened her that if she would disclose this incident to anyone then she would be killed. The victim also informed the complainant that she is carrying the child of appellant/ accused in her womb. With the same averments, P.W.2 Tumma Ram Arya lodged the FIR on 10.3.1993 at 11:15 AM at P.S. Deoprayag, Distt. Tehri Garhwal, i.e. Ex.Ka-2. On the basis of FIR (Ex.Ka-2), H.C. Vanmali Singh (P.W.3) prepared the Chik FIR, i.e. Ex.Ka-3. The entry was also made by him in the G.D., the copy of which is Ex.Ka-4. The investigation of this case was initially entrusted to P.W.6 S.I. M.L. Sant. Later on the investigation was transferred to P.W.5 S.I. Genda Singh Barcha. The victim Km. Saraswati was medically examined by P.W.4 Dr. Gopi Baunthiyal on 12.3.1993 at 11:30 AM and her medical report Ex.Ka-5 was prepared. Supplementary Report was also prepared by the same Medical Officer in respect of victim i.e. Ex.Ka-6. The I.O. also prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. During investigation, the I.O. recorded the 3 statements of witnesses and after completing the investigation, filed the charge sheet, which is on record. 4. Learned Special/Sessions, Tehri Garhwal framed the charges against the appellant/accused u/s 376 IPC and also u/s 3(10) of the Act on 20.1.1994. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Km. Saraswati, victim, P.W.2 Tumma Ram, father and complainant, P.W.3 H.C. Banmali Singh, who prepared Chik FIR, P.W.4 Dr. Gopi Baunthiyal, who medically examined the victim, P.W.5 S.I. Genda Singh Barcha, I.O. of the case and P.W.6 M.L. Sant, also an I.O. of the case. 6. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. In reply to question No.15, he has stated that the complainant had demanded Rs.1,000/- from him as donation. He refused to give the same due to which he was falsely been implicated. In oral evidence he got examined Mahima Nand as D.W.1. However, he did not adduce any documentary evidence. 7. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Special Judge, Tehri Garhwal vide judgment and order dated 02.02.1996 has convicted and sentenced the appellant/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 4 8. Before further discussion, it is pertinent to mention that victim Km. Saraswati was medically examined on 12.03.1993 at 11:30 A.M. by P.W.4 Dr. Gopi Baunthiyal and her medical report was also prepared i.e. Ex.Ka-5. The medical officer on the person of victim found as under: - “O/E-Patient fully conscious, well oriented. Per Abdomen-Uterus 28 weeks size, F.H.S. + Ux Per vaginal Exam-Hymen old torn, vagina admits 2 fingers easily Opinion-Patient is pregnant approximately 28 weeks. Advised x-ray abdomen (to detect foetal growth) Advise-X-ray wrist joint, knee joint, elbow joint and referred to Radiologist for age confirmation Km. Sarswati is used to intercourse. After the report of Radiologist, P.W.4 Dr. Gopi Baunthiyal prepared the Supplementary Report of the victim (Ex.Ka-6) and opined that: - “Age of the victim is between 15 years to 16½ years according to the report of Radiologist. There is presence of foetus in abdomen.” 9. To prove the aforesaid medical reports, the prosecution has examined P.W.4 Dr. Gopi Baunthiyal who has proved the medical report Ex.Ka-5 and supplementary report Ex.Ka-6 prepared by her. 10. Further to prove its case the prosecution has examined P.W.1 Km. Saraswati, victim of the case, who 5 has stated that appellant/accused was a Teacher in a Primary School at Village Soni and near that school, her agricultural field is there. In the year 1992 at about 12-1 P.M., she was working in her field. Meanwhile, appellant/ accused came there and took her in the field of Jhangora where he committed rape with her. Appellant-accused committed rape with her on several dates due to which she became pregnant. When she informed this fact to the appellant/accused then he assured her that he would marry her. After that she informed about her pregnancy to her father. When her father took her to the doctor then doctor had informed that she was carrying pregnancy of 8 months. When her father enquired from her about her pregnancy, then she narrated the entire incident to her father. After that her father lodged the FIR at Deoprayag police station and she was medically examined in the hospital also. Her statement was also recorded by the S.D.M., i.e. Ex.Ka-1. In cross-examination she has stated that the school was located in the center of the village and at the time of incident, school was going on in the village and 40-42 families were living. Near her field there is a motor route also and the vehicles also run in that route. Other villagers also used to work in the nearby fields. About half-an-hour time is taken while going to her field from her village. On the date of the incident, she had a discussion with the appellant/accused for about half-an- hour. Thereafter she went with the appellant/accused in the Jhangora field and she remained with the appellant/ accused there for about half-an-hour and after that she went from there. Again on the third day she came on the place of occurrence. After 7-8 days she again went on the place of occurrence and appellant/accused committed bad work with her and she too not stopped the appellant/ accused. She continued to meet the appellant/accused till 6 2nd of May, 1993. Before 2nd of May also she used to meet the appellant/accused and both of them used to have sexual intercourse. After 2nd of May, appellant/accused did not meet her and also the appellant/accused never came at her house. She herself used to come in the field to meet the appellant/accused. She further stated that on 17.2.1993, she felt pain in her abdomen and before 17th February, she did not disclose this fact to anyone. She further stated that before S.D.M., she had given the statement that she was having love affairs with the appellant/accused. 11. P.W.2 is Tumma Ram Arya, complainant and father of the victim, who lodged the FIR on the information given to him by her daughter P.W.1 Km. Saraswati. He proved the FIR lodged by him, i.e. Ex.Ka-2. He is a formal witness of the case. 12. P.W.3 is H.C. Banmali Singh who stated that on 10.3.1993 on the basis of the FIR Ex.Ka-2, he prepared the Chik FIR i.e. Ex.Ka-3 and made entry in the G.D., the copy of which is Ex.Ka-4. The investigation of this case was entrusted to P.W.6 S.I. M.L. Sant. 13. P.W.5 is S.I. Genda Singh Barcha who stated that on 13.3.1993 he was entrusted the investigation of this case. Before him, the investigation was being carried out by S.I. Mukund Lal Sant. He also prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. During the course of investigation, he recorded the statement of appellant/accused and after completion of investigation, he filed the charge sheet against the appellant/accused. 14. P.W.6 is S.I. M.L. Sant who stated that investigation of this case was entrusted to him on 7 10.3.1993. During investigation, he recorded the statement of complainant and that of Head Constable who prepared Chik FIR and that of victim Km. Saraswati. After that he had gone in the V.I.P. Duty and the investigation was transferred to S.O. 15. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. In reply to question No.15, he has stated that the complainant had demanded Rs.1,000/- from him as donation. He refused to give the same due to which he was falsely been implicated. In oral evidence he got examined Mahima Nand as D.W.1. However, he did not adduce any documentary evidence. 16. D.W.1 Mahimanand has stated that Tumma Ram Arya and his daughter were known to her who are his neighbourers. He is employed as a labourer in Jalagam Nursery. About 4-5 persons used to work in that Jalagam Nursery. In September, 1992 there was a quarrel between these labourers and Tumma Ram Arya. Two employees’ of Jalagam Nursery were apprehended in the house of Tumma Ram Arya along with his daughter. Tumma Ram had locked all three of them in a room and demanded Rs.8,000/- by those labourers for their release. After making the payment, those employees were set at free and some other villagers had also come there. 17. Sri Lokendra Dobhal, learned counsel for the appellant/accused argued that the charge sheet in the present case was directly filed in the court of Special Judge Tehri Garhwal on 18.06.1993 and the Special Court under the Scheduled Castes & Scheduled Tribes 8 (Prevention of Atrocities) Act, 1989 could not take cognizance of any offence straightway without the case being committed to the court. He further submitted that the charge sheet cannot straightway be laid before Special Court. I find force in the arguments raised by counsel for the appellants for the reasons to be stated hereinafter. 18. As regard the jurisdiction, it is necessary to refer Section 14 of the Act which is as follows: - “14. Special Court- For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act.” 19. From the above-said provision, it can be seen that the Special Court is constituted by the Act with concurrence with the Chief Justice of the High Court by a Notification with an object of speedy trial of the offences under the Act. 20. A perusal of the Act does not show any procedure prescribed for trial of the offences under the Act, and also does not specifically bar the procedure prescribed under the Cr.P.C. No doubt the language employed in the above Section shows that it is a Court of Session. 21. The relevant provisions of the Cr.P.C are in Section 173, which deals with report of the Police Officer after completion of investigation. Section 190 Cr.P.C. deals with the procedure of taking into cognizance of the offence by the Magistrate and after taking cognizance of the offence, the procedure prescribed under Sections 207 and 9 209 of the Cr.P.C. has to be followed. At this juncture, it is relevant to extract the provisions under Sections 193 and 209 of Cr.P.C.: - “193. Cognizance of offences by Courts of Session: Except as otherwise provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 209. Commitment of case to Court of Sessions when offence is triable exclusively by it- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall- (a) commit the case to the Court of Sessions; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Sessions.” 22. A reading of Section 193 shows that a Court of Sessions is barred from taking into cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate and Section 209 of the Cr.P.C expressly provides that if it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, such cases shall be committed to a Court of Sessions. 23. A combined reading of these two provisions only goes to show that the Magistrate Court is the initial Court to take cognizance of any offence including that of an offence exclusively triable by a Court of Sessions. It is for 10 the Magistrate to decide whether the offence is exclusively triable by the Court of Sessions or not. In other words, if the offence falls under the category of offences which are exclusively triable by a Court of Sessions, the Magistrate has to commit the same to the Court of Sessions for trial. It further follows that the Court of Sessions cannot directly take into cognizance of any offence unless provided by the Cr.P.C or by any other law. After such committal, the procedure for trial prescribed under Chapter XVIII of the Cr.P.C has to be followed. 24. Now, it has to be seen whether the Special Court constituted under the Act has made any express provision with regard to taking into cognizance of an offence by the Special Court without there being any committal proceeding by the Magistrate as provided under Sections 193 and 209 of the Cr.P.C. 25. As already observed, except Section 14 of the Act, no other express provision is available under the Act to try the offence under the Act by taking into cognizance straightway. Further no procedure to try any offence by Special Court is prescribed under the Act equivalent to that of the procedure prescribed under Chapter XVIII of the Cr.P.C, nor there is any specific provision expressly excluding the procedure prescribed under Sections 193 and 209 of the Cr.P.C. 26. Learned counsel for the appellant/accused referred a judgment of Hon’ble Supreme Court in the case of Moly & another Vs. State of Kerala reported in 2004 SCC (Cri.) 1348 in support of his case and relied on para 16 of the said judgment which reads as under: - 11 “16. Hence, we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid down before the Special Court under the Act. We are reiterating the view taken by this Court in Gangula Ashok v. State of A.P. and in Vidhyadharan v. State of Kerala in above terms with which we are in respectful agreement. The Sessions Court in the case at hand, undisputedly has acted as one of original jurisdiction, and the requirements of Section 193 were not met.” 27. Therefore, in the light of the detailed discussion made in the judgment referred to above and the relevant provisions of the Act and the Cr.P.C. as well as in view of the aforesaid judgment of Hon’ble Supreme Court in the case of Moly & another (Supra), I am of the considered view that Special Court could not have tried the offence under the Act by directly taking into cognizance of the offence deviating from the procedure prescribed under the Cr.P.C and thereby vitiate the trial of the offence by the Special Court rendering such trial as without jurisdiction and consequently any judgment rendered by such Court without jurisdiction, would not be a judgment in the eye of law. 28. It was further argued by counsel for the appellant/accused that the prosecution has not proved its case against the appellant/accused as the victim was major on the date of incident and the incident in question had occurred due to consent of both the parties. I find 12 force in the arguments put forth by counsel for the appellant for the following reasons: - A. P.W.1 Km. Saraswati has deposed that rape was committed with her in the month of September, 1992, however she did not disclose this fact to anyone till 17.2.1993. B. P.W.1 Km. Saraswati further stated that at several times, appellant/accused committed rape with her without her consent. She further deposed that the appellant/accused never came to her rather she used to go in the field which was near the Soni School where the appellant/accused was posted as Teacher and that too after traveling on feet for about half-an-hour from her house. A perusal of the evidence as discussed above makes it abundantly clear that the appellant/accused committed sexual intercourse with the victim with the consent of the victim at number of times even she did not make any objection to it. C. The victim further stated that she met with the appellant/accused last time on 2.5.1993 while the FIR in question was lodged on 10.3.1993. Thus, it is abundant clear that the victim continued to meet the appellant/accused even after lodging of the FIR in the police station. Even she did not make any complaint to anybody in the police station and she disclosed this fact to her father when the doctor gave opinion that she became pregnant of 28 weeks. Thus, as per the above-said discussion, there is no hesitation to state that the victim herself was the consented party and whatever the 13 incident had happened, that was with the consent of both the parties. D. As per the supplementary report Ex.Ka-6, the age of the victim is in between 16½ years. It is settled law that on the basis of Radiological Report, two years’ age margin on either side can be given. After adopting the settled law, if two years age margin on higher side is given, then definitely the victim was about 18½ years i.e. she was major on the date of incident. 29. Therefore, in view of the foregoing facts and circumstances of the case, the conviction and sentence as awarded by the trial court against the appellant/accused is not correct and justified and I do not concur the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 30. For the reasons recorded above, the appeal is allowed. The judgment and order dated 02.02.1996 passed by Special Judge, Tehri Garhwal in Special Trial No.04/1993, State Vs. Chatar Singh, is set aside. The conviction and sentence as awarded against the appellant/accused, as discussed above, is also hereby set aside. Appellant/accused is on bail. He needs not surrender unless required in any other case. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) June 25, 2009 Rajeev Dang *