IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.625 OF 2001 (Old No.15/1997) Virendra @ Tara Chand ……… Appellant Versus The State ……… Respondent Dated: December 14, 2009 Sri Lokendra Dobhal, 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 05.12.1996 passed by the Sessions Judge, Dehradun in Sessions Trial No.119 of 1996, State Vs. Virendra @ Tara Chand, 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 ten years’ rigorous imprisonment with fine of Rs.2,000/-. The appellant-accused was further convicted u/s 366 IPC and was sentenced to five years’ R.I. with fine of Rs.1,000/-. Both the sentences were directed to run concurrently. In case of default of fine imposed u/s 376 IPC, R.I. for a term of one year and in case of default of fine imposed u/s 366 IPC, six months’ R.I. was further awarded. 2 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant (P.W.3) Shankar lodged an FIR stating therein that on 2.3.1996 at about 7:00 PM, the appellant-accused Virendra @ Tara Chand came in his house and enticed away his daughter Km. Rupa, who 1`was aged about 6-7 years, on the pretext of giving Namkin, who was seen by the complainant’s wife and neighbourer Smt. Parvati Devi and they also informed about the same to the complainant. The appellant- accused took the victim behind the cremation ground where he committed rape with her. On hearing the cries, the complainant along with his wife as well as the residents of locality namely Jhungru, Shankar, Ram Chander Yadav and other persons reached on the spot and saved the complainant’s daughter from the appellant-accused. By that time, police of Lakhi Bagh Chowki also reached there, by whose help, the appellant-accused was caught on the spot. It was also stated by the complainant that his daughter was bleeding profusely. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.3 Shanker on 2.3.1996 at 8:45 PM at Kotwali Dehradun. On the basis of the FIR (Ex.Ka-1), Head Moharrir Shyam Lal prepared the Chik FIR of the case, i.e. Ex.Ka-5. In the same process, entry was also made by him in the G.D., the carbon copy of which is Ex.Ka-6. The investigation of this case was entrusted to P.W.6 S.I. Prem Shankar Sharma. Victim Km. Rupa was medically been examined on 2.3.1996 at 9:45 PM by Dr. Renuka Naithani (PW4) 3 who after the medical examination prepared the medical report Ex.Ka-3. On receipt of the vaginal smear report, the same medical officer also prepared the supplementary report of victim, i.e. Ex.Ka-4. The I.O. took in his possession the bloodstained Skirt (GHAGHRA) of the victim Km. Rupa into possession and prepared the Fard, i.e. Ex.Ka-2. 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 the course of 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. It is imperative to mention here that the recovered skirt of victim was sent to the Scientific Laboratory, Agra by the order of CJM, Dehradun, i.e. Ex.Ka-9. The report given by the Assistant Director/Scientific Officer, Scientific Laboratory, Agra is on record which is Ex.Ka.10, a perusal of which shows that on the skirt of the victim, sperms, human blood and human semen were found. 4. After receiving the charge sheet, learned CJM, Dehradun committed the case to the court of Sessions on 05.06.1996 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. On 2.7.1996, the learned Sessions Judge, Dehradun has framed the charges against the appellant /accused Virendra @ Tara Chand u/Ss 363/366/376 IPC. The charges were read over and explained to 4 appellant/ accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Smt. Beena, the mother of the victim, P.W.2 Km. Rupa, victim, P.W.3 Shanker, father of victim and complainant, P.W.4 Dr. Renuka Naithani, who medically examined the victim, P.W.5 Constable Jagat Ram, eyewitness and P.W.6 S.I. Prem Shanker Sharma, I.O. of the case. 7. 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 got himself examined as D.W.1. 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 5.12.1996 convicted and sentenced the appellant/accused as discussed above. 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 here the medical report (Ex.Ka-3) of the victim who was examined on 2.3.1996 at 9:45 PM by P.W.4 Dr. Renuka Naithani, which is as under: - 5 “General Examination-Scratch mark on right side of face about 4” superficial. No other marks seen on her body. Breast not developed and pubic axillary hair absent. Local Examination-No marks of injury seen on her private parts. Vagina, hymen fresh torn with complete perineal tear. Rectum sprinter torn. Vaginal smear taken and sent for hystopathology. Repair of complete perineal tear done under “G” anesthesia by Dr. Dimri and Dr. R. Naithani and girl is admitted in Women’s Hospital. Opinion-no definite opinion regarding rape can be given at present. Final report shall be given after seeing hystopathology report of vaginal smear.” After receipt of the Vaginal Smear Report, the same medical officer also prepared the supplementary report of the victim and opined as under: - 1. “Vaginal smear report negative for sperms Opinion-No definite opinion regarding rape can be given.” 10. To prove the above-said medical reports, the prosecution has examined P.W.4 Dr. Renuka Naithani who stated that on 2.3.1996 at 9:45 PM she had medically examined the victim Km. Rupa, who was brought to her by Women Constable Pramod Thapliyal No.362 and the victim’s mother. She has proved the 6 medical report Ex.Ka-3 and supplementary medical report Ex.Ka-4 prepared by her. She also stated that at the time of the medical examination, profuse bleeding of Km. Rupa was found. Injuries on the person of victim were fresh and could possibly be caused about 2-2½ hours before. She further stated that if a forcibly sexual intercourse by a man is committed with a small girl, then these type of injuries could be caused by the penetration of penis. She further stated that it cannot be ruled out that the sperms could not have been washed away due to the profuse bleeding. 11. To further prove its case, the prosecution has examined P.W.1 Smt. Beena, mother of the victim, who stated that her daughter Km. Rupa is 6-7 years of age. She further stated that on the date of incident at about 7:00 PM, she was washing the clothes and her daughter Km. Rupa was at 5-7 steps downwards near the water tap. After a short while, she did not find her daughter on which she started searching but she could not find her daughter. After some time, when her husband Shanker came home then she also informed him about the missing of their daughter, who also started searching his daughter. After moving ahead towards the cremation ground, they heard the screams of their daughter who was weeping. When she and her husband moved further, then found that the appellant- accused had lifted the skirt (GHAGHRA) of her daughter and he was bent upon her and was committing rape with her. Her daughter was profusely bleeding from her vagina and she had also received some injuries of 7 nails on her face. The appellant-accused was caught on the spot in that position and from there, he was brought in her house where several persons of the locality had also come out of them Ram Chandra and Parwati were there. The police persons also came on the spot who took the appellant-accused along with them. The skirt of her daughter also became bloodstained. 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.2 is Km. Rupa, child witness and victim, who identified the appellant-accused in the court. She further stated that she was playing along with a girl Shanti, her neighbourer. The appellant-accused came near her and gave Rs.2 to her and took her towards the forest on the pretext of giving Namkin. This incident was happened in the evening. Her mother had gone for toilet while her father had gone to take curd. The appellant-accused after taking her there, committed rape with her. Meanwhile, when her parents had come there then the appellant-accused left her. Her mother had caught the appellant-accused and brought her near the temple. She also came along with her parents. Her skirt (GHAGHRA) and frock also became bloodstained. This witness was cross-examined by the defence counsel but nothing could be elicited so as to shake her testimony. Her evidence is natural, trustworthy and reliable. 8 13. P.W.3 is Shanker who stated that on 2.3.1996 at about 7:00 PM he had gone to take some articles and after returning home, he enquired from his wife about the whereabouts of his daughter, however she shown her inability. In the meantime, his neighbourer Parwati informed that she saw the appellant-accused Tara Chand while taking Km. Rupa by holding her hand. After that he along with his wife and aunt proceeded to search Km. Rupa. When they reached at the lavatory near the cremation ground, then his wife called her daughter “Rupa, Rupa”. Then they heard the weeping of Km. Rupa. On reaching at the spot, the appellant-accused was found committing rape with his daughter Km. Rupa and blood was oozing out from the vagina of his daughter and her skirt also became bloodstained. The appellant-accused was caught on the spot by his wife and the police personnel also reached there on hearing the noise and the persons of locality also reached there. He got the report scribed from Shiva and lodged the same, i.e. Ex.Ka-1. The police also took the bloodstained clothes of his daughter and prepared Fard, i.e. Ex.Ka-2. The medical examination of his daughter was conducted at Women’s Hospital, Dehradun and after obtaining his permission, the doctor stitched the wounds after making her unconscious. This witness was also cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 9 14. P.W.5 is Constable Jagat Ram who stated that on 2.3.1996 at about 6:30 PM, somebody informed him that several persons were collected near the cremation ground. Upon this, he along with H.C. Jagbir Singh moved on the place of occurrence and found that several persons were accumulated over there. He saw that a girl, namely, Km. Rupa, aged about 6-7 years was lying on the ground and the appellant-accused was committing rape with her. The persons, who were accumulated there, had handed over the appellant- accused to them. He saw that the blood was oozing out from her private parts. He identified the appellant- accused in the court who was arrested on the spot. He along with the S.I. and the public persons had taken the appellant-accused and the victim at Kotwali. The statement of this witness is also reliable and believable. 15. P.W.6 is S.I. Prem Shanker Sharma, who stated that investigation of this case was entrusted to him. On the basis of report given by Shanker, this case was registered and the Chik FIR was prepared by H.M. Shyam Lal, i.e. Ex.Ka-5. In the same process, he also made entry in the G.D., carbon copy of which is Ex.Ka.6. On 3.3.1996, Shanker (PW3) had handed over the bloodstained skirt of the victim to him for which he prepared Fard Ex.Ka-2. On the pointing out of the complainant Shanker, he prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. During investigation, he recorded the statements of witnesses and on completing the investigation, he filed the charge sheet against the appellant-accused, i.e. Ex.Ka-8. He also sent the skirt of the victim at the scientific 10 laboratory by the order of CJM, Dehradun, i.e. Ex.Ka-9. The skirt of the victim was marked as Material Ex.1. 16. 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 got himself examined as D.W.1. He has stated as a defence witness that he has been falsely implicated in this case. He further stated that he had given Rs.3,500/- to the mother of victim Km. Rupa. When he went to take back the money in the house of the victim on the date of incident, the money was not paid to him rather he has been falsely implicated in this case. 17. Sri Lokendra Dobhal, learned counsel for the appellant-accused argued that the prosecution has not proved its case against the appellant-accused beyond reasonable doubt. I do not find any force in this argument for the reason that P.W.2 Km. Rupa, who is a child witness, aged about 6-7 years, and unfortunately the victim of the case, had rightly identified the appellant-accused in the court. She stated in her evidence that on the date of incident, she was playing along with a girl Shanti. The appellant-accused came near to her and gave Rs.2 to her and after that he took her towards the forest by enticing on the pretext of giving Namkin. This incident had happened in the evening. At that time, her mother had gone for toilet while her father had gone to take curd. The appellant- 11 accused after taking her on the spot, committed rape with her. Meanwhile, when her parents had come there then the appellant-accused left her. Her mother had caught the appellant-accused on the spot and brought her near the temple. She also came along with her parents. Her skirt (GHAGHRA) and frock also became bloodstained. The evidence of this child witness is natural, trustworthy and reliable. Her evidence also gets corroboration from the oral evidence of P.W.1 Smt. Bina, P.W.3 Shanker and P.W.5 Constable Jagat Ram, who are the eyewitnesses of the above-said incident as well as from the medical evidence i.e. medical report Ex.Ka-3 and supplementary medical report Ka-4. P.W.4 Dr. Renuka Naithani has also stated that at the time of the medical examination, profuse bleeding on the private parts of victim Km. Rupa was found. She further stated that the injuries were fresh and could possibly be caused about 2-2½ hours before conducting of medical examination. She further stated that if a forcibly sexual intercourse by a man is committed with a small girl, then these type of injuries could be caused by the penetration of penis. She further stated that the sperms could have been washed away due to the profuse bleeding. The injury on the private parts of the victim was so grave that the medical officer had to repair the perineal tear of the prosecutrix putting her under general anesthesia. The prosecutrix Km. Rupa has herself stated that she had suffered profuse bleeding from her private part. She further stated that the appellant-accused was pressing 12 her neck and scratching her face at the time of committing rape. Even as per the scientific report given by Assistant Director/ Scientific Officer, Agra, the skirt of the victim was carrying sperms, human blood and human semen. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of the prosecutrix. Thus, in view of the aforesaid discussion, I am of the considered view that the offence punishable u/s 366/376 IPC is fully proved against the appellant-accused beyond any reasonable doubt and the trial court has rightly convicted and sentenced the appellant-accused as discussed above. The appellant-accused has committed a heinous crime i.e. he committed rape with a female child, who was just 6-7 years of age at the time of incident. I am in full conformity with the findings recorded by the trial court for convicting and sentencing the appellant- accused as above-said discussed. 18. For the reasons as aforesaid, the appeal is devoid of any merits and the same is accordingly dismissed. The judgment and order dated 05.12.1996 passed by the Sessions Judge, Dehradun in convicting and sentencing the appellant-accused, as discussed above, needs no more interference by this Court and the same is hereby made affirmed. The appellant- accused is on bail. Let him be taken into custody forthwith to serve out the sentence as awarded against him. His bail bonds stand cancelled. However, it is provided that the period already served out in jail by the appellant-accused during investigation, trial or 13 appeal shall be adjusted after being verified from records. 19. A copy of this order along with the record shall be sent back to the trial court concerned for compliance forthwith. (Dharam Veer, J.) 14.12.2009 Rdang