RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.272 OF 2001 (Old No.84/1993) Sher Singh S/o Harphool R/o Village Sherpur, P.S. Rampur Maniharan, Distt. Saharanpur ……… Appellant Versus The State ……… Respondent Dated: June 15, 2009 Smt. Pushpa Joshi, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 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 11/12-11-1992 passed by Sessions Judge, Dehradun in Sessions Trial No.81/1990, State Vs. Sher Singh, whereby the learned Sessions Judge has convicted the appellant/accused u/s 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years’ rigorous imprisonment. 2. I have heard Smt. Pushpa Joshi, learned counsel for the appellant/accused 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 complainant Mam Chand (P.W.3) lodged an FIR stating therein that on 23.5.1990 son of his elder brother Satish 2 had gone out in his relations and his (Satish’s) wife Smt. Kamlesh had gone to collect fuel wood in the forest. At about 2:00 P.M. appellant/accused Sher Singh came at the house of Satish to take water from the tap. Then the appellant/accused dragged the victim Km. Bharti, aged about 10 years, inside the house and there he committed sexual intercourse with her. When the victim raised alarm then her mother Smt. Kamlesh (P.W.4) and neighbourers Smt. Shanti Devi, Jai Chand and other persons of the locality came on the spot and saw that appellant/accused Sher Singh was laying on the victim Km. Bharti and blood was also oozing out from the private parts of the victim. Appellant/accused was caught hold there by the villagers. This incident was informed to the complainant Mam Chand by the villagers at his house. Soon thereafter he also reached on the spot. He further stated that victim Km. Bharti also informed to him about the above-said incident. Thereafter, the victim Km. Bharti along with appellant/accused Sher Singh was brought to the police station. With the same averments, the FIR Ex.Ka-2 was lodged by P.W.3 Mam Chand after getting it scribed from Rao Nasim Ahmed on 23.5.1990 at 9:15 PM at RoP Patel Nagar, P.S. Kotwali, Dehradun. On the basis of the FIR (Ex.Ka-2), Constable Clerk Jitendra Pal prepared the Chik FIR of the case, i.e. Ex.Ka-10. The investigation of this case was entrusted to P.W.5 S.I. Dharam Veer. Victim Km. Bharti was medically been examined on 23.5.1990 at 11:15 PM by P.W.2 Dr. Meenakshi Uniyal and medical report was prepared, which is on record. After the receipt of the x-ray report, Histopathology Report, which is Ex.Ka-1 was also prepared. The I.O. took the underwear of the appellant/accused Sher Singh into possession and prepared Fard, i.e. Ex.Ka-4. The I.O. also took in his possession the blood stained BAAN of the cot and also a 3 piece of blood stained cloth into possession and Fard was also prepared, i.e. Ex.Ka-3. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/accused in the court, i.e. Ex.Ka-8. 4. After receiving the charge sheet, learned CJM, Dehradun committed the case to the court of Sessions on 27.08.1990 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. Learned Sessions Judge, Dehradun has framed the charge against the appellant/accused Sher Singh u/s 376 IPC. The charge was read over and explained to appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Km. Bharti, victim, P.W.2 Dr. Meenakshi Uniyal, who medically examined the victim, P.W.3 Mam Chand, complainant of the case, P.W.4 Smt. Kamlesh, mother of the victim and P.W.5 S.I. Dharamveer Singh, I.O. of the case. 7. After that the statements 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 denied the allegations made against him and stated that he has been falsely implicated. In oral evidence he has produced D.W.1 Anwar, D.W.2 Sewa Ram and D.W.3 Smt. Janeshwari. In documentary evidence, he got proved 4 an extract from the statement of Km. Kamlesh (mother of the victim) recorded u/s 161 Cr.P.C. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Dehradun vide judgment and order dated 11/12.11.1992 convicted the appellant/ accused u/s 376 IPC and sentenced him to seven years’ rigorous imprisonment. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that the victim Km. Bharti was medically been examined on 23.5.1990 at 11:15 PM by P.W.2 Dr. Meenakshi Uniyal and her medical report was prepared. The medical officer in the report found as under: - “Breasts - Not developed Auxiliary Hair - Not developed Pubic Hair - Not developed No mark of injury on any part of body. Hymen and forchetta torn 1/2 cms. at 6 o’clock position, irregularly. Mild fresh in touch bleeding from torn hymen edges vagina admits index finger easily. Vaginal smear taken with swab and sent for histopathology. Advised-X-ray of wrist, elbow, knee, ankle joint. After that the medical officer prepared the Histopathology report and X-ray report and found as under: - Histopathology report-Vaginal smear is negative for spermatozoa. X-ray report – 1. Epiphysis around elbow joint yet not fused 2. Centre epiphysis for lateral angle present. 3. Epiphysis lower end radius not yet fused. 4. All the carpal bones were present. 5. Epiphysis around knee ankle joint not yet fused. 5 Conclusion- Age of the girl between 8-10 years. Signs of rape present. Clothes of girl were blood stained. Semen stains could not be identified.” 10. To prove the aforesaid medical report, the prosecution has examined P.W.2 Dr. Meenakshi Uniyal who has stated that on 23.5.1990 she was posted as Emergency Medical Officer at Women Hospital, Dehradun and at 11:15 PM she had medically examined the victim Km. Bharti and found on the person of victim as mentioned above. On the basis of the x-ray report, she has stated that the age of the victim is in between 8-10 years. She further stated that the signs of rape were present on the person of victim Km. Bharti. She also proved the report prepared by her i.e. Ex.Ka-1. 11. To further prove its case the prosecution has examined P.W.1 Km. Bharti, victim of the case, aged ten years, was a child witness and before her statement commenced, certain questions were put to her to ascertain whether she understands the questions and can given the statement properly. After that the court reached to the conclusion that she is quite alert and understands the questions. However, she being of young age was not administered oath. She has stated that appellant/accused Sher Singh was known to her who was standing in the dock behind. She further stated that on the date of incident, it was the noon time. Appellant/ accused Sher Singh came to her house to take water. She was all alone at that time. She objected to the taking of the water. Appellant/accused Sher Singh dragged her inside the house and after making her to lie on the cot removed her Salwar and also removed his underwear and then committed rape with her. She further stated that she felt 6 pain and blood also oozed out. She raised alarm then appellant/accused placed his hand upon her mouth. She further stated that she also bite him. She further stated that the appellant/accused remained upon her for sufficiently long time. After some time her mother came from the forest after collecting the fuel wood. Smt. Shanti Devi, Jai Chand and Mam Chand (P.W.3) also came and so many other persons were also collected over there. Appellant/accused Sher Singh was apprehended there and she did not know what was happened after that. She further stated that she does not know whether she was taken to the hospital or not because she became unconscious. This witness was cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is reliable and believable. 12. P.W.3 Man Chand has stated that on 23.5.1990 in the evening he came at his house and upon knowing the incident he went there and enquired about the happening. The victim Km. Bharti then informed the entire incident to him. He got a report Ex.Ka-2 written from Rao Naseem Ahmad, Pradhan and along with the victim Km. Bharti and appellant/accused Sher Singh, he went to outpost Patel Nagar, P.S. Kotwali. On the next day police came on the spot. The I.O. also took in his possession a blood stained piece of cloth as well as a bloodstained piece of BAAN of the cot and prepared a Fard, i.e. Ex.Ka-3. He further stated that the underwear of appellant/accused Sher Singh was taken into possession at the Chowki and Fard was prepared, i.e. Ex.Ka-4. This witness was also cross-examined at length by the defence counsel but nothing has come out in his 7 statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 13. P.W.4 is Smt. Kamlesh, mother of the victim, who has also fully corroborated the evidence of P.W.1 Km. Bharti. 14. P.W.5 is S.I. Dharamveer Singh who has stated that on 23.5.1990 he was posted as In-charge of Chowki Patel Nagar and on that day the present case was registered. He himself conducted the investigation of this case. Appellant/accused Sher Singh was brought to the police station by the public and complainant. He got the underwear (Ex.4) of appellant/accused removed and sealed the same in a piece of cloth (Ex.5) and prepared Fard, i.e. Ex.Ka-4. Specimen of seal thereof Ex.6 was also prepared. He also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. He also prepared a Fard i.e. Ex.Ka-3 for taking the blood stained piece of cloth (Ex.8) and BAAN (Ex.7) of the cot from the place of occurrence and specimen of seal Ex.9 was also prepared. He also proved the Fards Ex.Ka-5 and Ex.Ka-6 and Ex.Ka.9 prepared by Constable Clerk Jitendra Kumar. During the course of investigation, he recorded the statements of witnesses and after completing the investigation, he filed the charge sheet, i.e. Ex.Ka-8. 15. 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 denied the allegations made against him and stated that he has been falsely implicated. In oral evidence he has produced D.W.1 Anwar, D.W.2 Sewa Ram and D.W.3 Smt. Janeshwari. In documentary evidence, he got proved an extract from the statement of Km. Kamlesh (mother of the victim) recorded u/s 161 Cr.P.C. 8 16. D.W.1 Anwar has stated that he was contractor at the brick kiln of Gandhi Palta and used to supply labour at the brick kiln. On 23.5.1990 at about 4:30 PM, Jai Prakash, Munnu and two ladies came at the brick kiln and took away appellant/accused Sher Singh dragging at the shop of Jai Prakash. Appellant/accused Sher Singh was wearing underwear and shirt at that time. He also followed him at the shop of Jai Prakash. There appellant/accused was being assaulted. When he and other labourers enquired why he was being beaten but they were not told anything. Then appellant/accused was taken to outpost Patel Nagar in a tractor. He also went to the Chowki but nothing was heard by the S.I. 17. D.W.2 Sewa Ram has also corroborated the statement of D.W.1 Anwar. 18. D.W.3 is Smt. Janeshwari, wife of appellant/ accused who has stated that the character of his husband was good and there is none other in the family to look after her children. 19. Smt. Pushpa Joshi, learned counsel for the appellant/accused argued that as per the above-said evidence, the case against the appellant/accused is not proved beyond reasonable doubt. I do not find any force in this argument as P.W.1, Km. Bharti, who is the victim of the case, aged about ten years was a child witness and she has stated that appellant/accused Sher Singh known to her who was standing in the dock behind. She further stated that on the date of incident, it was the noon time. Appellant/accused Sher Singh came to her house to take water. She was all alone at that time. She objected to the taking of the water. Appellant/accused Sher Singh dragged her inside the house and after 9 making her to lie on the cot removed her Salwar and also removed his underwear and then committed rape with her. She further stated that she felt pain and blood also oozed out. She raised alarm then appellant/accused placed his hand upon her mouth. She further stated that she also bite him. She further stated that the appellant/accused remained upon her for sufficiently long time. After some time her mother came from the forest after collecting the fuel wood. Smt. Shanti Devi, Jai Chand and Mam Chand (P.W.3) also came and so many other persons were also collected over there. Appellant/accused Sher Singh was apprehended there and she did not know what was happened after that. The evidence of P.W.1 Km. Bharti is reliable, natural and believable and inspires confidence and the same gets corroboration from the evidence of P.W.2 Dr. Meenakshi Uniyal who has stated the age of the victim is in between 8-10 years. She further stated that the signs of rape were present on the person of victim Km. Bharti. She further stated in the medical report (Ex.Ka-1) that the clothes of the victim were bloodstained. Thus, it is proved that the statement of P.W.1 Km. Bharti gets full corroboration from the medical evidence also. Her statement gets further corroboration from the evidence of P.W.3 Mam Chand, complainant and P.W.4 Smt. Kamlesh, mother of the victim. Thus, in view of the aforesaid facts and circumstances of the case, the prosecution has been fully able to prove its case against the appellant/accused beyond reasonable doubt for the offence punishable u/s 376 IPC. 10 20. It was further argued on behalf of the appellant/accused that in the Histopathology report of the victim, it has come that the vaginal smear is negative for spermatozoa, therefore, the rape is not complete. I again do not find any force in the argument put forth by the counsel for the appellant/accused because P.W.2 Dr. Meenakshi Uniyal, who was examined by the prosecution, has specifically stated in her opinion that the signs of rape are present and the clothes of the girl were blood stained. Further, the victim, who is a child witness only of 10 years of age has clearly deposed that appellant/accused committed rape forcibly with her as discussed above. It is pertinent to mention that as discussed above, the evidence of P.W.1 Km. Bharti is corroborated from the medical evidence of P.W.2 Dr. Meenakshi Uniyal as well as from the evidence of P.W.3 Mam Chand and P.W.4 Smt. Kamlesh. Therefore the offence punishable u/s 376 IPC is clearly proved against the appellant/ accused. 21. In view of the above-said discussion, the prosecution has fully proved its case against the appellant /accused beyond reasonable doubt u/s 376 IPC and the trial court is correct and justified in convicting and sentencing the appellant/accused as discussed above. I also concur the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 22. For the reasons recorded above, the appeal is devoid of merits and is accordingly dismissed. The judgment and order dated 11/12.11.1992 passed by Sessions Judge, Dehradun in S.T. No.81/1990, State Vs. Sher Singh, is hereby affirmed. The appellant is on bail. His bail is cancelled. Let him be taken into custody forthwith in order to serve out the sentence. 11 23. Let a copy of this order be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) June 15, 2009 Rajeev Dang