Manoj Kumar Bharti @ Mani Painter vs State Of Uttarakhand

Lok Pal Singh, J

Criminal law was set into motion at the instance of PW1 (complainant and mother of the victim) who submitted a report (Ext. A-1) with P.S. Barinag, District Pithoragarh, stating therein, that she is posted as Staff Nurse in Primary Health Center, Barinag and was doing night shift. On 08.04.2014, when complainant reached her house after finishing her duty, her daughter Km. X (name withheld) told the complainant that Manoj Kumar alias Mani Painter made a phone call to victim at 04:19 A.M., and allured her to his room where he tried to molest her. On being refrained, the accused forcibly took the victim to bed and committed rape on her and threatened the victim with dire consequences. The complainant was shocked on coming to know the ordeal of her daughter.

According to complainant, the victim is a minor and is a student of Class XII.

2) On the basis of said report, chik FIR (Ext. A-10) was lodged against the appellant in respect of offences punishable under Sections 376(1) and 506 of IPC and Section 04 of the Protection of Children from Sexual Offences Act. The investigation of the case commenced. The I.O. prepared site plan, got the victim medically examined and got recorded her statement under Section 164 Cr.P.C. I.O. also took into possession the underwear of accused and prepared memo (Ext. A-4) thereof. He also got prepared medical report of the victim (Ext. A-6); application sent to Pathologist for smear examination (Ext. A-8); supplementary medical report of victim (Ext. A-9); performa sent to forensic science laboratory (Ext. A-12); medical report of the accused (Ext. A-13); memo regarding taking into possession the apparels worn by the victim at the time of incident (Ext. A-14); memo of arrest (Ext. A-16); memo taking into possession the bed sheet (Ext. A-18); attested copy of transfer certificate (Ext. A-24) and attested copy of High School marksheet (Ext. A-25). After completion of investigation, charge sheet (Ext A-22) was filed against the accused for his trial in respect of selfsame offences.

3) The case was committed to the court of Special Sessions Judge for trial. Charges were framed against the accused under Sections 376 (1) & 506 of IPC and Section 4 of POCSO Act. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 (name withheld) [complainant / mother of the victim], PW2 Km. X (name withheld); PW3 Constable Vinod Mehta; PW4 Dr. Renu Suntha; PW5 Constable Asha Tamta; PW6 H.C. Girish Chand; PW7 Constable Suresh Chand; PW8 Dr. V.S. Gautam; PW9 Sunil Bisht (I.O.) and PW10 Veena Marx. DW1 Pushkar Lal, DW2 Pushpa and DW3 Anil Singh were examined in defence. In reply to questions posed under Section 313 of Cr.P.C., the accused replied that the prosecution evidence against him is false.

4) The trial court, after hearing the prosecution and the defence, convicted the accused-appellant under Sections 376(1) and 506 of IPC and Section 4 of POCSO Act. The convict-appellant was sentenced to undergo rigorous imprisonment for a period of seven years along with a fine of Rs.20,000/-, in alternative, as per the provisions of Section 42 of POCSO Act, he was also sentenced under Section 376(1) IPC. Convict-appellant was further sentenced to undergo rigorous imprisonment for a period of one year along with a fine of Rs.1000/- under Section 506 Para 2 of IPC.

5) Present criminal appeal has been received through the Superintendent, District Jail, Almora, on behalf of the appellant, who is currently lodged is said jail.

6) A perusal of the FIR as well as the charge sheet would reveal that the allegations levelled against the accused-appellant were that on 08.04.2014, when PW1 (complainant and mother of the victim) reached her house after duty, her daughter (victim) told her that Manoj Kumar alias Mani Painter made a phone call to victim at 04:19 A.M., allured her to his room and molested her. On being asked not to do so, accused-appellant forcibly took the victim to bed and committed rape on her and thereafter threatened her with dire consequences. According to PW1, the victim is a minor and was studying in Class XII at the time of incident.

7) PW2 (victim) deposed before the court that during school holidays she used to visit the videogame shop of accused-appellant situated at Barinag, where her mother was posted. A day prior to the incident, her mother left her sleeping at her colleague's quarter situated on the first floor of the building. On the day of incident, in the wee hours, accused-appellant called PW2 over phone asking her to come down at her mother's quarter. When PW2 reached there, accused-appellant told her that her mother is ill and on this pretext took her with him. Accused-appellant took the prosecutrix at his house and locked the room. When PW2 asked the accused-appellant about her mother, he molesting her. Thereafter, accused-appellant forcibly took PW2 to bed, disrobed her and committed rape on her. Accused-appellant also threatened the victim of dire consequences. PW2 further states that she narrated the entire incident to her mother.

8) PW1 has corroborated the fact that on her return from duty on the date of incident, she found her daughter weeping badly, and on being asked PW2 narrated the entire incident to her, on which she lodged the first information report (Ext. A-1).

9) The statement of the PW1 (victim) not only gets corroboration from the statement of PW1 (mother & complainant), but also from the MLC supplementary report (Ext. A-9) which is based on examination of vaginal smear received from Pathologist, B.D. Pande Hospital, Pithoragarh. According to Pathologist, there are large number of epithelial cells visible in the smears. Spermatozoa are found visible in the smears.

10) PW4 Dr. Renu Suntha, Medical Officer, who prepared the medical examination report (Ext. A-6) has mentioned in said report that on medical examination of the victim she found bruise in left breast above nipple; teeth bite mark in the left breast; multiple small bruises of teeth bite mark on left side of neck above collar bone; slight swelling and bruise present in left side of upper lip. In the opinion of DW4, hymen was found torn.

11) Apart from this, there is report dated 27.05.2014 (Ext. A-21) received from Forensic Science Laboratory, Dehradun, that in the underwear of the victim as well as in the underwear of the accused human semen were detected. The statements of the witnesses, including that of the victim and PW1, are natural and reliable.

12) It is a case of serious nature in which a minor was subjected to rape by the accused-appellant after alluring her and thereafter committing rape on her. As such, from the testimony of the victim corroborated by the statement of PW1 & PW4, the MLC supplementary report (Ext. A-9) and FSL examination report (Ext. A-21), it is proved beyond reasonable doubt that accused-appellant Manoj Kumar Bharti alias Mani Painter committed offences punishable under Section 376(1) and 506 of IPC and the one punishable under Section 4 of POCSO Act. This Court fully concur with the conviction and sentence recorded by the trial court against the accused-appellant. There is no room of doubt in the testimony of the victim as well as other witnesses examined on behalf of the prosecution and fully substantiated by the medical report and FSL examination report.

13) Learned Amicus Curiae for the appellant would submit that in the present case PW4 (Medical Officer) has referred the victim to the Radiologist for ascertaining her age, but PW1 had not given her consent for medical examination of victim, which creates reasonable doubt on the prosecution story in regard to the age of victim on the date of incident.

14) The argument advanced by learned Amicus Curiae appearing on behalf of the appellant has no force. It is specifically provided in Sub Rule (3) of Rule 12 of Juvenile Justice (Care and Protection of children) Rule, 2007, that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available, and in the absence thereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat....

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board.

Thus, it is abundantly clear that only in absence of any of the aforesaid options postulated in Rule 12(3), the assessment of age of the concerned child should be ordered to be done on the basis of medical opinion.

15) Learned Amicus Curiae would further submit that the appellant has falsely been implicated in the crime, and harsh punishment has been given to him disproportionate to his act. However, on examination of entire evidence on record, I am of the considered opinion that the trial court has rightly found accused-appellant guilty of the offences for which he was charged.

16) For the reasons as discussed above, I do not find any error of law or that of fact or in appreciation of evidence, on the part of the trial court. As such, impugned judgment and order does not need interference of this Court. Accordingly, the appeal is liable to be dismissed. The appeal is dismissed. Conviction and sentence of the accused-appellant is maintained.

17) Let a copy of this judgment be sent to the Superintendent of jail concerned where the accused-appellant is lodged. Lower court record be also sent back.