RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 205/2006 Pal Singh ……… Appellant Versus State of Uttaranchal ………. Respondent Mr. Vinod Sharma, Advocate, for the appellants. Mr. P.S. Bohara, Brief Holder, for the State. 26th August, 2011 Hon’ble Servesh Kumar Gupta, J. This appeal has been preferred against the judgment and order dated 31.7.2006, rendered by the Special Judge, Uttarkashi in Special Sessions Trial No. 7/2005, State v. Pal Singh. In the said trial, the appellant Pal Singh was found guilty under Section 376(2)(f) IPC and was sentenced to undergo 10 years’ rigorous imprisonment as well as fine of rupees five thousand. In default of payment of fine, he was further directed to undergo one and half year’s simple imprisonment. 2. As per the prosecution story, the FIR was lodged by Suraj Lal, the father of the prosecutrix Km. Pinky with the averments that her daughter Km. Pinky was returning from her school on 21.9.2005 at 4 pm. While she was on her way to home, accused Pal Singh caught hold of her and forcibly took her towards a deserted place. 4-5 other children, who were accompanying Km. Pinky, became frightened. So, they quietly came to their house and did not raise alarm at the spot. His daughter Km. Pinky returned to her house. When she was lying in the house in a semi unconscious state, his wife awakened her. Then Km. Pinky 2 started weeping. On being asked, she narrated the entire incident what had happened with her. She disclosed that while returning from the school to her home, she was forcibly driven by a blackish man, who abused her all the way. He drove her inside a bush and committed sexual intercourse with her against her wishes. This act of the accused caused pain in her genitals and the blood started oozing out from her private parts. Anyhow, she reached to her house. When Suraj Lal reached to the house at about 8 pm, his daughter Km. Pinky was still weeping. On being asked by Suraj Lal from his wife, the latter explained everything to him. The uncle of Suraj Lal also saw Km. Pinky coming out from the bush at about 4.20 pm on that day, and that time she was weeping. He also witnessed the accused Pal Singh escaping from the spot. This FIR was lodged by Suraj Lal at Police Station on 21.9.2005 at 11 pm. The girl was taken to the hospital. Next day on 22.9.2005, at about 11 am, she was medically examined. After investigation, the police submitted the chargesheet against the accused Pal Singh for the offence of Section 376(2)(f) IPC as well as Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. Charges were levelled against the accused Pal Singh for the offence as indicated above. He denied the charges. So, the prosecution was asked to produce its witnesses. After examination of the witnesses and rendering of opportunity to the accused person under Section 313 CrPC as well as opportunity to adduce evidence in his defence, the accused was convicted and sentenced as stated above. 3 4. I have heard the learned Counsel for the accused and learned Counsel for the State. 5. The main thrust of the arguments of the learned Counsel for the appellant is that the accused is not named in the FIR. The prosecutrix has narrated the identity of the accused in words that the offence was committed by some blackish man. It has been also argued that Km. Pinky, who has been examined as PW10, has also not identified the accused person by his name in her examination-in-chief. But this contention is not tenable. She has clearly stated in her examination-in-chief that while she was on her way, accused, named Pal, who was present in the court, confronted her and took her in his lap to the bush. She has also deposed that the accused untied her breech as well as his pant and committed rape on her because of which the blood oozed out from her genitals. This child witness has disclosed her age as eight years. The Doctor, on the basis of ossification tests, has disclosed her age to be below 12 years. Km. Pinky has admitted her acquaintance with accused Pal Singh from before. She, at page 4 of her statement, has stated the reason of knowing him from before the incident because the accused carried a buffalo from the house of her friend Deeksha. He came to her village 4 days prior to the incident to fetch the buffalo from Deeksha’s house. This reason is sufficient for knowing him. So, the argument of the learned Counsel that the accused was neither named in the FIR nor he was identified by the prosecutrix is not tenable. Besides, the identity of the accused is also proved by the witness Deeksha (PW11), who is also a child witness. The learned Judge at the time of her deposition before the trial court has opined that she was competent to understand the nature of questions and to 4 answer them. This witness Km. Deeksha has corroborated the version of the prosecution that Km. Pinky was forcibly taken away by the accused. She has also identified the accused Pal Singh in the court. 6. The medical examination, conducted on the next day within 18 hours of the incident, has confirmed the rape upon the victim Km. Pinky. The contention of the learned Counsel that no injury was present on the top of the penis of the accused person is hardly of any significance. When the accused, who is aged about 35 years, committed this sexual assault on the person of the prosecutrix, then it is not always possible that the rapist will sustain such kind of injury. 7. The clothes of Km. Pinky, which she was wearing at the time of incident, were also found bloodstained. These clothes were taken in possession during course of investigation and the memo of recovery of the said clothes has been proved as material Ex. A-3. The contention of the learned Counsel that no spermatozoa was found inside the vagina of the victim, is also of no avail because in the incidents of forcible sexual intercourse, it is not always necessary that ejaculation of semen shall take place inside the vagina. 8. PW1 Suraj Lal has proved the lodging of the FIR by him, which is Ex. A-1. The chick report is Ex. A-8. 9. Smt. Sumitra Devi is PW2 and also the mother of the prosecutrix. She has proved that breeches of her daughter Km. Pinky were extensively bloodstained above the knees. Her daughter, immediately after the incident, 5 disclosed the entire episode to her. Thus, the evidence of Smt. Sumitra Devi is also relevant and admissible under Section 6 of the Evidence Act. 10. PW3 is Dr. Smt. Jugnu Govil, who examined Km. Pinky on the next day of the incident. She has proved that her hymen was ruptured and the stains of blood were present on her thighs. She has proved the commission of rape on 21.9.2005, between 4 to 5 pm, upon the prosecutrix. She has also opined in her statement that the cause of rupture of hymen of Km. Pinky was only the rape and not otherwise. 11. Smt. Kamli Devi, PW4 is mother of Km. Deeksha. She has also proved that Km. Deeksha immediately after coming from the school disclosed the incident to her that the accused forcibly took away Km. Pinky from the company of her and the other children. This statement made by Km. Deeksha to her mother is also relevant and admissible under Section 6 of the Evidence Act. Smt. Kamli Devi has also proved that Deeksha had also named the accused Pal Singh because 3-4 days ago, Pal Singh had come to her house for purchasing buffalo. Thus the statement of this witness read with the statement of her daughter Deeksha, corroborates the prosecution story. 12. PW5 Premu has also proved that when Km. Pinky, Rinky and Deeksha were returning from the school, they were being chased by the accused Pal Singh. He noticed the presence of Pal Singh, who was following these children. 6 13. PW6 is Prem Singh, who is the witness of recovery memo of the bloodstained clothes of Km. Pinky. He has proved his presence at the time of making the recovery memo by the Investigation Officer. 14. PW7 Satya Prakash is the witness, who accompanied the father of Km. Pinky to Govt. hospital, Chinyali Saud, from where she was referred to District Hospital, Uttarkashi. He has proved that by hiring a private vehicle, they first came to Police Station Dharasu, where Suraj Lal (father of the victim) lodged an FIR. Satya Prakash has also scribed the FIR and has proved that the FIR was reduced in writing by him exactly in same words as were spoken by Suraj Lal. After lodging the FIR, they came to District Hospital, Uttarkashi along with Km. Pinky, where she was examined on the next day. 15. PW8 Dr. Vinod Kumar is the radiologist, who, on the basis of several tests and x-ray report, has proved the age of Km. Pinky to be below 12 years. 16. PW12 is the Dy. S.P., Shiv Charan Singh Bisht, who, has investigated the matter and has submitted the chargesheet. In the beginning, the matter was also investigated by PW14 K.R. Bhatt, Circle Officer, Barkot, District Uttarkashi. Both these Investigating Officers have deposed before the court below and proved the investigation, which they respectively did. 17. The accused could not give any explanation in his statement under Section 313 CrPC. He has only stated that the victim belongs to Scheduled Caste community. So, in order to extract money from him, false report has been 7 made. This explanation is quite hollow and shallow and is not at all acceptable in the facts and circumstances of the case. 18. In view of the foregoing discussion, this Court finds that the prosecution has successfully proved its case beyond reasonable doubt and the trial court has rightly convicted and sentenced to the accused for the offence of Section 376(2)(f), while exonerated him of the charge of offence punishable under Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 19. The learned Counsel for the appellant has urged that in case the appeal fails, the Court may mercifully consider the reduction of quantum of sentence from ten years to the period already undergone. He apprised the Court that the victim is in jail from the date of his arrest made soon after the incident. If this statement of the learned Counsel of the appellant is accepted, then period of sentence, which he has undergone by this time, will be nearly six years. This period in the opinion of this Court is not enough for this ghastly and heinous crime because the prosecutrix was a school going minor girl at the time of incident, aged between 8-12 years. However, considering the fact that the accused has three minor sons and one daughter, aged about 22 years, his sentence is reduced from ten years to 8 years in exercise of powers as envisaged in the proviso appended to Section 376(2) IPC. 20. In the result, the appeal is dismissed on merit. However, the period of sentence is reduced to eight years from ten years. However, the amount of fine is left intact. The impugned judgment and order of the trial court is 8 modified to this extent only. The appellant Pal Singh is already lodged in jail. He shall serve out the remaining period of sentence. 21. Let a copy of this judgment and order be sent to the trial court for compliance. Lower court record be sent back. (Servesh Kumar Gupta, J.) 26.8.2011 Prabodh 9 CONFIDENTIAL Nainital, 26th August, 2011 To, The Registrar General I wish to apprise you the total incompetency of Mr. J.K. Jain, Personal Assistance in his work of taking dictation and typing it thereafter. He has no knowledge of English grammar, formation of sentences, punctuation, etc. His dictionary is too weak to take dictation of a High Court Judge. For the last more than four months, I am tolerating this man with the hope that he will improve himself, but all in vain. In order to help him improve, I have also gave him a grammar book of matriculation standard and asked him read and practice the same. For many a days, I checked his practice work, but this exercise consumes a lot of my valuable time. I am unable to take any work from him. You are, therefore, hereby asked to remove Mr. J.K. Jain, P.A. forthwith from my office and depute him at some other place, where some work of his level can be taken from him. If deemed proper, my this assessment and remark regarding him be kept on appropriate record. Yours sincerely (Justice Servesh Kumar Gupta) 10 Head P.S./P.S. to Registrar General I have been directed by Hon’ble Mr. Justice Servesh Kumar Gupta to deliver this confidential letter to you with request to immediately place it in the same sealed envelope before the Registrar General. Please also acknowledge the receipt of the same. (PRABODH KUMAR) P.A. to Hon. Mr. Justice Servesh Kumar Gupta