HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII, Rule 32 (2) (b) Description of the Case. Crl. Appeal no. 1344of 2001 (Old no. 824/1988) Dhyan Singh …Appellant Vs. State. …Respondent Approved for Reporting __________________ Not Approved for Reporting Date of Decision 12th March, 2008. Initial of Judge. -------------------- Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1344 of 2001 (Old no. 824 of 1988) Dhyan Singh S/o Kalam Singh Resident of village Barari, Patti- Sarjula, Distirct Tehri Garhwal. -------Accused/appellant. Versus The State. -----Respondent Sri Lokendra Dobhal, learned counsel for the appellant. Sri G.S. Sandhu learned Govt. Advocate for the State. Dated: March 12, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 9th March 1988 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial no. 23 of 1987 State vs. Dhyan Sing whereby the learned Sessions Judge has convicted the appellant/accused Dhyan Singh and sentenced him to undergo four years’ rigorous imprisonment for the offence punishable u/s 363 Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) five years’ rigorous imprisonment for the offence punishable u/s 366 I.P.C., five year’s rigorous imprisonment for the offence punishable u/s 376/511 I.P.C. and one year’s rigorous imprisonment for the offence punishable u/s 354 I.P.C. It was further directed that all the sentences shall run concurrently. And the learned Sessions Judge, vide this very judgment and order has acquitted the accused/appellant Dhyan Singh for the offence punishable u/s 366-A I.P.C. 2. In brief, the prosecution case is this that on 08.04.1987 at about 7:00 a.m. P.W.2 Km. Amupama Gupta, the victim, aged about 8 years’ who was a student of Class III in Saraswati Shishu Mandir, Tehri was ready in her school uniform. On the dated of incident the complainant P.w.2 Ram Avatar Prasad Gupta, father of the victim, was residing in the house of Virendra Dutt Saklani, Advocate at Mohalla Ahalkari, Tehri on rental basis. On the date of incident i.e. on 08.04.1987 Km. Anupama has gone for a walk from her house. In the meantime; the appellant-Dhyan Singh has enticed the girl and took her to little ahead towards back of the bushes and closed her mouth with his hands, thereafter the accused laid the victim at the earth in the bushes. When the girl could not come bake to her house then the complaint started searching her, alongwith his wife and the neighbours. On hearing noise; the appellant/accused started running away from the scene. Km. Anupana, in weeping condition came out of the bushes and told that the man who is running from the place of occurrence is the culprit who, after capturing her, had shut her mouth with his hands and took her in the bushes; he threatened her if she would make noises then he will kill her with a knife. The girl was afraid of and her mouth was shut, thus she was feeling suffocation. The nearby people had reached at the place of occurrence, therefore, the accused ran away from the scene. The complainant and the residents of Mohallas’ had chased and apprehended the accused/appellant at some distance in running condition near KABRISTAN. When the accused was apprehended, then he disclosed his name as Dhyan Singh Topwal S/o Kallam Singh Topwal, village Baurari, Patti Sahjulka, district Tehri Garhwal. It is further alleged in the written report that the accused/appellant had enticed the girl with the intention to commit rap on her. The complainant had taken the accused to the Police Station and lodged the First Information Report (Ext. Ka-1) in the Police station Tehri, district Tehri Garhwal. On the basis of the written report the Chik First Information Report Ext. Ka-2 was prepared by Head Moharir Parmanand in the Police Station on 08.04.1987 at about 7:30 a.m. The distance of the place of occurrence is shown about ½ kms. from the Police Station. An entry was made in the General Diary, a copy of the G.D. is Ext. Ka-3. 3. The investigation of the case was entrusted to P.W. 8 S.I. S.K. Tyagi. During the course of the investigation the Investigation Officer recorded statements of the witnesses and prepared a site-plan of the place of occurrence, which is Ext. Ka-4 on the record. The Investigating Officer after completing the investigation, has filed charge sheet on 10.05.1987 against the accused/appellant Dhyan Singh for the offence punishable u/s 363,366,376,511 I.P.C. The charge sheet is Ext. Ka-9 on the record. 4. Learned Chief Judicial Magistrate, Tehri Garhwal on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trail on 24.08.1987 u/s 209 Cr.P.C. 5. Learned Sessions Judge, Tehri Garhwal after hearing the parties on 08.10.1987 framed the charges of offence punishable u/s 363,366,366-A, 376/511 and 354 I.P.C. against the accused/appellant Dhyan Singh. The charges were read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. The prosecution, to prove its case, has examined P.W.1 Ram Avatar Prasad, complainant- father of the victim, P.W.2 Km. Anupama Gupta, the victim, P.W. 3, Vijay Prasad Bahuguna, P.W. 4 Jagdamba Prasad, P.W. 5 Head Constable Parmanand, P.W. 6 Premwati, P.W.7 Devendra Singh and P.W.8 S.I. Satish Kumar Tyagi, Investigating Officer of the case. 7. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. The accused did not produce any oral or documentary evidence in his defence. 8. After appreciating all the evidence available on record and hearing upon learned counsel for the parties, the learned Sessions Judge, Tehri Garhwal vide impugned judgment and order dated 9th March 1988 has convicted the appellant/ accused Dhyan Singh and sentenced him to undergo four years’ rigorous imprisonment for the offence punishable u/s 363 I.P.C. five years’ rigorous imprisonment for the offence punishable u/s 366 I.P.C., five years’ rigorous imprisonment for the offence punishable u/s 376/511 I.P.C. and one year’s rigorous imprisonment for the offence punishable u/s 354 I.P.C. It was further directed that all the sentences shall run concurrently. Aggrieved with the impugned judgment and order the accused/ appellant Dhyan Singh has preferred the present appeal. 9. The learned Sessions Judge, Tehri Garhwal vide impugned judgment and order dated 9th March 1988 has also come to the conclusion that there is no evidence on record that the accused/appellant Dhyan Singh kidnapped Km. Anupama Gupta with the intention that she may be subjected to sexual intercourse by some person other than the accused, therefore he acquitted the accused for the offence punishable u/s 366-A. 10. I have heard Sri Lokendra Dobhal, learned counsel for the accused/appellant and Sri G.S. Sandhu, learned Govt. Advocates for the State. 11. The prosecution to prove its case, first of all, has examined P.W.1 Ram Avatar Prasad, the complainant. Statements of this witness were recorded in the Court on 26.11.1987. This witness has stated that on 08.04.1987 at about 7:00 a.m. in the morning his daughter, aged about 9 years’ was in her school uniform and was ready to go for her school. He told his daughter that still some time is left to go to school therefore, walk outside. After sometime he and his wife came outside their house to see their daughter, but they did not find her. On inquiry from the nearby people he came to know that they also did not see his daughter. In the process of searching, calling loudly to her, he went towards the bushes in the back side of his house. In the meanwhile; he saw one person coming out of the bushes who ran away from the place of occurrence. Seeing the accused in the Court, he identified the person that the accused/appellant is the person who ran away from the bushes. Within no time, his daughter Km. Anupama Gupta came out of the bushes in weeping condition and she narrated that the person who had ran away from the scene had taken her in his lap and after closing her mouth with his hand he untied her trousers and laid her on the earth; the accused had threatened her to kill her. He has further stated that he chased the person-accused/appellant and made shrieks. On hearing his shrieks so many other people had also chased the accused and apprehended the accused/ appellant at KABRISTAN. The accused has told his name as Dhyan Singh. Thereafter, the accused/appellant was taken to the Police Station. He has written the report outside the Police Station and after making signature on it, he lodged the First Information Report in the Police Station. This witness has been cross examined by the defence counsel at length; but nothing has come out in his cross examination which may create doubt in his statements. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 12. P.W.2 is the victim Km. Anupama Gupta who was examined in the Court on 26.11.1987. This witness has deposed that on 08.04.1987 at about 7:00 a.m. she was ready to go to school in her school uniform. Sometime was left to depart for the school and her father has asked her to walk outside, therefore, she went at the back side of her house. After walking for a while she sat for urinating at the road side, In the meanwhile the accused/appellant reached near her (after) seeing the appellant in the Court she identified him). Thereafter, the accused had asked her father’s name and when she did not tell her father’s name then the accused/appellant offered her 3-4 toffees but she refused to take the toffees. Then lifting her in his lap and closing her mouth with his hand, the accused/appellant took her in the bushes where he threatened her that if she would make a noise he will kill her. Then the accused untied her trousers and in the meantime her father reached there calling her loudly and the accused had ran away from the place of occurrence. In weeping condition, she came out of the bushes and narrated the incident to her father. She also told her father that the person ran from the scene was threatening her that if she would make a noise he will kill her. His father had tied her string. She was in suffocation; therefore she cannot say that what the accused did after loosening her string. This witness was also cross examined at length by the defence counsel but nothing has come out in his evidence which may create doubt in his Statements. The evidence of this witness is reliable, believable and trustworthy. 13. P.W. 3, Vijay Prasad Bahuguna, P. W. 4 Jagdamba Prasad, P.W. 6 Premwati, P.W.7 Devendra Singh have not supported the prosecution version hence they were declared hostile by the prosecution. 14. P.W.5 is the Head Constable Parmanand who has stated that on 08.04.1987 he was posted as Head Moharir at the Police Station Tehri. On that day Ram Avatar Gupta has filed a written report Ext. Ka-1 in the Police Station and on the basis of the written report he prepared a Chik report Ext. Ka-2 which is his hand writing. An entry was also made in the G.D., a copy of which is Ext. Ka-3 on the record. 15. P.W.-8 is S.I. Satish Kumar Tyagi-I.O. who has stated that on 09.04.1987 he was posted in the Chowki Simlasu Police Station Tehri. The Investigation of this case was entrusted to him and during the course of investigation on 09.04.1987 he recorded the statements of Ram Avatar, Km. Anupama and the statements of the accused and on the pointing out of the complainant as well as the victim, after making spot inspection, he prepared a site-plan of the place of occurrence. That site plan is Ext. Ka-4 on the record. He has further stated that on 20.04.1987 he recorded the statements of Devendra Singh, Vijay Prasad Bahuguna u/s 161 Cr.P.C. He filed copy of the statements of Vijay Prasad, which is Ext. Ka-5 on the record. He also filed copy of the Statements of Devendra Singh, which is Ext. Ka-6 on the record. On 26.04.1987 he recorded statements of Premwati u/s 161 Cr.P.C. a copy of which is Ext. Ka-7 on the record. Similarly he recorded the statements of Jagdamba Prasad u/s 161 Cr.P.C. a copy of which is Ext. Ka-8 on the record. After completing the investigation, he filed charge sheet against the accused Dhyan Singh on 10.05.1987 which is Ext. Ka-9 on the record. 16. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and in reply to the question no. 13 he has stated that he did not come to Tehri on the date of occurrence. He was caught on 8th April. He was standing to go to Tehri near a truck carrying sand. In the meantime a fat man, namely, Kanti Bahuguna came there and he asked for a match box which he had given. The man had asked his name and address. Then he moved forwarded and saw a crowed gathered there. There he asked from the girl and the girl told that the person involved in the crime was alike. Due to this reason, the Police have caught hold of him. The accused/appellant did not produce any oral or documentary evidence in his defence. 17. Learned counsel for the accused/appellant has submitted that as per the evidence discussed above the guilt of the accused is not proved and the Trial Court has wrongly convicted the accused/appellant in the above said Sections of the I.P.C. Submission of the learned counsel for the appellant is this that as per the evidence produced by the prosecution, the prosecution has failed to prove its case beyond reasonable doubt against the accused/ appellant. But from the evidence discussed above it has come in the statements of P.W.-2 Km. Anupama Gupta that on the date of incident she was aged about 8 years’ and at the time of incident she was enticed by the accused/ appellant and after capturing her forcefully in his lap and closing her mouth with his hand, he took her in the bushes; untied her trousers and laid her down on the earth. In the meanwhile father of the victim, alongwith, others had reached on the place of occurrence and the accused/appellant was apprehended on the spot on running condition near the KABRISTAN. This fact is proved from the evidence of P.W.2 Km. Anupama Gupta who has deposed before the Trial Court that that on 08.04.1987 at about 7:00 a.m. she was ready to go to school in her school uniform. Sometime was left to depart for the school and her father has asked her to walk outside, therefore she went towards the back side of her house. After walking for a while she sat for urinating at the road side. In the meanwhile the accused/appellant reached near her and had asked her father’s name. When she did not tell her father’s name then the accused/appellant offered 3-4 toffees to her but she refused to take the toffees. Then lifting her in his lap forcefully and closing her mouth with his hand, the accused/appellant took her in the bushes where he threatened her that if she would make a noise he will kill her. Then the accused untied her trousers and in the meantime her father reached there, calling her loudly, and the accused ran away from the place of occurrence. In weeping condition, she came out of the bushes and narrated the incident to her father. She also told her father that the person ran from the scene was threatening her that if she would make a noise he will kill her. His father had tied her string. She was in suffocation; therefore she cannot say that what the accused did after loosening her string. This witness is the victim and her evidence is quite natural and cogent. This witness has expressed the entire episode before the Court below step-by-step. Thus, the evidence of P.W.2 Km. Anupama Gupta cannot be doubted. The testimony of the victim is fully corroborated with the evidence of other witness i.e. P.W.1 Ram Avatar Prasad Gupta, the complainant who had seen the accused/appellant coming out of the bushes and running from the scene. Immediately thereafter her daughter came out of the bushes in weeping condition who had narrated the whole incident to him. This witness had chased the accused/appellant alongwith the others and caught hold of him in running condition near the KABRISTAN. Before the Trial Court, this witness has stated that that on 08.04.1987 at about 7:00 a.m. in the morning his daughter, aged about 9 years’ wearing her school uniform was ready to go for her school. He told his daughter that still some time is left to go to school therefore, walk outside. After sometime he and his wife came outside their house to see their daughter, but they did not find her. On making inquiry from the nearby people he came to know that they also did not see his daughter. In the process of searching, calling loudly to her daughter, he went towards the bushes in the back side of his house. In the meanwhile, he saw one person coming out of the bushes who ran away from the place of occurrence. Within no time his daughter Km. Anupama Gupta came out of the bushes in weeping condition and she narrated that the person who had ran away from the scene had taken her in his lap and after closing he mouth he untied her trousers and laid to her on the earth; the accused had threatened her to kill her. He has further stated that he chased the person- accused/ appellant and made shrieks and on hearing his shrieks so many other people had also chased the accused and apprehended the accused/appellant at KABRISTAN. The accused has told his name as Dhyan Singh. Thereafter, the accused/appellant was taken to the Police Station. He has written the report Ext. Ka-1 outside the Police Station and after making signature on it, he lodged the First Information Report in the Police Station. 18. From the above discussions it can simply be said that the evidence of P.W.2 Km. Anupama Gupta- victim, who at the time of the occurrence was minor aged about 8 years’, is quite convincing, natural and inspires confidence and there is no reason to disbelieve her testimony. The testimony of P.W. 2 is fully corroborated with the evidence of P.W.1 Ram Avatar Prasad Gupta who is the complainant and had seen the accused/appellant running from the place of occurrence after commission of crime, stated above. The accuse/ appellants could not show as to what was to reason to implicate him falsely, leaving behind the real culprit. 19. Thus, from the material available on record and the evidence discussed above; the prosecution has proved it case beyond reasonable doubt that on 08.04.1987 at about 7:00 a.m. the accused/appellant Dhyan Singh kidnapped Km. Anupama Gupta, a minor aged about 8 years’ from the lawful guardianship of her parents in Ahalkari Mohalla- Tehri, Police Station Tehri with the intention that she may be forced or seduced to illicit intercourse and on the same date, time and in the bushes near the house of Ram Avtar Prasad Gupta, the accused Dhyan Singh attempted to commit rape with Km. Anupama against her will and the accused/appellant has used criminal force against Km. Anupama with intention to outrage her modesty. The learned Sessions Judge has rightly convicted the accused appellant as mentioned above. The judgment and order dated 9th March 1988 passed by the learned Sessions Judge, Tehri Garhwal is justified and correct as per the discussions above which does not warrant interference at this stage and the appeal preferred by the appellant is liable to be dismissed. 20. Accordingly, the appeal preferred by the accused/ appellant Dhyan Singh is hereby dismissed. The conviction and sentence awarded by the learned Sessions Judge, Tehri Garhgwal to the accused/ appellant Dhyan Singh for the offence punishable under Section 363, 366, 376/511 and 354 I.P.C. is affirmed. The period already spent by the appellant Dhyan Singh in jail shall be commuted out of the sentence awarded by the Court below after making verification from the record. 21. The accused/appellant is on bail. Let a copy of this judgment, alongwith the record of the Court below be sent to the Sessions Judge, Teri Garhwal to make accused/appellant Dhyan Singh to serve out the sentence awarded by the Trail Court. (Dharam Veer, J.) NCM: