Rakesh Kumar vs State of Uttarakhand

Prafulla C. Pant, J.—Both these appeals are directed against the judgment and order dated 22.3.2012 passed by learned Sessions Judge. Udham Singh Nagar, in Sessions Trial No. 253 of 2011, whereby said court has convicted accused/appellant Rakesh Kumar under Sections 376, 363 and 366. I.P.C. He (Rakesh Kumar) has been sentenced to rigorous imprisonment for a period of seven years u/s 376. I.P.C., rigorous imprisonment for a period of five years u/s 363. I.P.C. and rigorous imprisonment for a period of five years u/s 366. I.P.C. Another appellant Rohit @ Guddu has also been convicted by the trial court under Sections 363 and 366. I.P.C., and on each count he has been sentenced to rigorous imprisonment for a period of five years. He (Rohit @ Guddu) has been further convicted and sentenced u/s 120B. I.P.C. to rigorous imprisonment for a period of two years, and directed to pay fine of Rs. 10.000. In default of the payment of fine accused Rohit @ Guddu has been directed to undergo simple imprisonment for a period of two years. Heard learned counsel for the parties, and perused the lower court record.

Prosecution story in brief is that on 26.3.2011 at about 10:30 a.m.. P.W. 1 Shabnam (a minor girl) had left her house for school, and did not return. On 28.3.2012. her father P.W. 3 Ahmad Navi gave First information report (Ex. A-4) at Police Station. Kotwali. Rudrapur. Udham Singh Nagar. stating that he has come to know that his minor daughter has been enticed away by accused/appellant Rakesh Kumar. On the basis of said report, crime/F.I.R. No. 132 of 2011 was registered relating to offences punishable under Sections 363 and 366. I.P.C., against accused Rakesh Kumar. Investigation was taken up by P.W. 5 Sub Inspector Manoj Kumar. On 1.4.2011. accused Rakesh Kumar was apprehended alongwith the girl near bus-stand of Rudrapur. Udham Singh Nagar. The custody of the minor girl was handed over on the next day to his father. Thereafter. Shabnam (P.W. 1) was taken to District Hospital. Rudrapur. Udham Singh Nagar. for her medical examination. P.W. 2 Dr. Tanuja Sinha conducted medical examination. She observed in her report (Ex. A-2) that there was no mark of injury in vulva. vagina and perineal region. Hymen was old torn. Vagina admitted one finger easily. She (P.W. 2) Dr. Tanuja Sinha advised x-ray of the right elbow. right wrist and right knee. She also sent vaginal smear slides taken of the victim for pathological examination. On receipt of the pathological examination report and x-ray report. P.W. 2 (Dr. Tanuja Sinha) prepared supplementary report (Ex. A-3). and opined that the age of the girl was between 15 to 17 years, and no definite opinion about rape could be given. On 4.4.2011. the victim was taken to Judicial Magistrate. Udham Singh Nagar. and her statement (Ex. A-1) was recorded u/s 164, Cr. P.C. In said statement the girl narrated that on the day of the incident accused Rohit @ Guddu took her from near the shop towards a Maruti car where co-accused Rakesh Kumar was sitting. She was threatened of dire consequences, and taken in the car to a lonely place, and in the mid-way accused Rohit @ Guddu got down. She further stated that after taking to a lonely house she was kept by the accused Rakesh Kumar for five-six days where she was raped by him. On completion of investigation and after inspecting the site, the Investigating Officer submitted the charge-sheet (Ex. A-11) against accused Rakesh Kumar for his trial in respect of charge of offences punishable under Sections 363, 366 and 376, I.P.C., and against Rohit @ Guddu for his trial in respect of charge of offences punishable under Sections 363, 366 and 120B. I.P.C.

The Magistrate on receipt of the charge-sheet, after giving necessary copies to the accused as required u/s 207, Cr. P.C., appears to have committed the case to the court of sessions for trial. Learned Sessions Judge. Udham Singh Nagar, on 29.9.2011 after hearing the parties framed charge of offences punishable under Sections 363, 366 and 376, I.P.C. to which he (Rakesh Kumar) pleaded not guilty, and claimed to be tried. On the same day as against accused Rohit @ Guddu charge of offences punishable under Sections 363, 366 and 120B, I.P.C. was framed, and he too denied the charge and claimed to be tried.

Prosecution got examined P.W. 1 Shabnam (minor victim) P.W. 2 Dr. Tanuja Sinha (medical officer who examined the girl), P.W. 3 Ahmad Naqvi (informant and father of the girl), P.W. 4 Constable Diwan Nath (who prepared the check report of F.I.R. and made necessary entry in the General Diary) and P.W. 5 Sub Inspector Manoj Tiwari (who investigated the crime).

Oral and documentary evidence was put to the accused u/s 313. Cr. P.C. in reply to which both the accused pleaded that the evidence adduced against them was false. They also stated that they have been falsely implicated in the case. However, no evidence in defence was adduced.

The trial court after hearing the parties found that the prosecution has fully proved charge of offences punishable under Sections 363, 366, 376, I.P.C. against accused Rakesh Kumar, and that of one punishable under Sections 363, 366 and 120B, I.P.C. against accused Rohit @ Guddu. The two were convicted accordingly, and the trial court alter hearing on sentence, sentenced each one of them to rigorous imprisonment for a period of five years under each of the Sections 363 and 366, I.P.C. Accused Rakesh Kumar was further sentenced to rigorous imprisonment for a period of seven years u/s 376, I.P.C. Accused Rohit @ Guddu was further sentenced to rigorous imprisonment for a period of two years and directed to pay fine of Rs. 10,000 u/s 120B, I.P.C. In default of the payment of fine said convict (Rohit @ Guddu) was directed to undergo simple imprisonment for period of two months. Aggrieved by said Judgment and order dated 22.3.2012 passed by learned Sessions Judge. Udham Singh Nagar, in Sessions Trial No. 253 of 2011, these two appeals have been preferred separately by the convicts.

Before further discussion this Court thinks it just and proper to mention the observations made by P.W. 2 Dr. Tanuja Sinha after medical examination of the victim (P.W. 1 Shabnam) on 2.4.2011. The observation made by said medical officer in Ex. A-2 are being reproduced below:

No injury noted in vulva, vagina and perineal region at the time of examination. No discharge/bleeding P/V noted at the time of examination. Hymen torn old. Vagina admits one finger easily. Specimen taken from fourchette for slides for detection of spermatozoa.

Ex. A-2 prepared by P.W. 2 Dr. Tanuja Sinha shows that she advised on 2.4.2011 for x-ray of right elbow, right knee and right wrist for radiological test for determination of age of the victim.

P.W. 2 Dr. Tanuja Sinha in her statement has stated that after she received the radiological examination report and pathological examination report, she prepared supplementary report (Ex. A-3) on 6.4.2011. Reproducing the radiological examination report, she (P.W. 2) mentioned in the supplementary report that on x-ray of right wrist AP epiphysis distal end of radius and ulna were not found fused. On x-ray of right knee AP epiphysis around the knee joint were also not found fused. On x-ray of right elbow AP epiphysis around the elbow joint was almost completely fused. On the basis of these findings received, she (P.W. 2 Dr. Tanuja Sinha) opined in the court that the girl was aged between 15 to 16 years. The pathological examination report was negative as such the medical officer (P.W. 2) mentioned in supplementary-affidavit (Ex. A-3) the no definite opinion about rape can be given.

In her oral testimony P.W. 2 Dr. Tanuja Sinha stated that the menstruation periods of the girl had not started. She further stated that normally menstruation period of the girl starts between 12 to 16 years of age. She further stated in her examination-in-chief that the breasts of the girl were not fully developed, and as such in her opinion the girl was aged less than sixteen years.

In view of the discussion of the medical evidence as above, it is established on the record that the girl was aged less than sixteen years. That being so even under the law as it existed on the day of the incident, consent of the girl for sexual intercourse had no significance in the present case. Now to see as to whether accused Rohit @ Guddu kidnapped the girl in conspiracy with accused Rakesh Kumar who allegedly raped the girl, it is necessary to scrutinize the statement of the victim.

P.W. 1 Km. Shabnam is the star witness of this case. She has stated that she was student of class six. She further told that on the day of the incident accused Guddu (Rohit) called her from near the shop where she had gone to take pen on her way to Balika Vidya Mandir (school where she used to study). She further told that accused Guddu (Rohit) took her to Rakesh Kumar who was sitting in a Maruti car. She further narrated that she was pushed in the car and taken away by the two accused. The victim (P.W. 1) further told that the accused Rakesh Kumar threatened her with the knife possessed by him. P.W. 1 Shabnam further told that on the way accused Rohit @ Guddu got down. whereafter accused Rakesh took her to lonely house. She further told that she was undressed and raped several times by accused Rakesh Kumar for the days she was kept in the house. She further stated that after she was apprehended with accused Rakesh Kumar near bus-stand she was taken for medical examination. She further proved her statement (Ex. A-1) given by her to the Judicial Magistrate. She was subjected to lengthy cross-examination but nothing has come out in her testimony which creates reasonable doubt in her evidence. In cross-examination she has told that accused Rakesh Kumar was not known to her from before.

P.W. 3 Ahmed Navi is the father of the victim who has proved the F.I.R. (Ex. A-4) given by him at the police station about the fact that he had come to know of fact that his daughter was kidnapped by accused Rakesh Kumar. Though, the F.I.R. was lodged after two days of the incident but it has been explained in his statement that after 26.3.2011, he kept searching for his daughter in the neighbourhood and at the places of the relatives. As such delay in F.I.R. is not fatal in the present case.

Mrs. Pushpa Joshi, learned senior counsel appearing for appellant Rakesh Kumar submitted that the victim in her statement, recorded u/s 161. Cr. P.C. by the Investigating Officer, did not allege commission of rape by accused Rakesh Kumar. However, on going through the entire evidence on record this Court is of the view that said fact pointed out by learned senior counsel does not create any reasonable doubt in the testimony of the victim given before the Magistrate during investigation and one given by her before the trial court. It is relevant to mention here that allegation of rape made by the victim before the Magistrate and before the trial court cannot be disbelieved as against the one said to have been given to Investigating Officer as the victim had no enmity with accused Rakesh Kumar. Her consent, if any, is also of no value as the victim was aged less than sixteen years as discussed above.

It is argued on behalf of the appellants that had the girl been kidnapped in the manner suggested by prosecution, she would have cried for help on her way with the two accused. On carefully going through the evidence on record, this Court finds that there is sufficient explanation given by the victim as to why she could not shout for help. She (P.W. 1) has stated that after she was pushed Into Maruti car, accused Rakesh Kumar threatened her with a knife that she would be killed if she attempted to cry. Even otherwise assuming that the girl had gone on her own motion to the accused, considering the age of the girl which is less than sixteen years in the present case, taking away her from lawful guardianship for forced sexual intercourse, clearly constitutes an offence punishable under Sections 363 and 366, I.P.C., against the two accused. The conspiracy of Rohit @ Guddu with accused Rakesh Kumar is apparent as after pushing the girl into car accused Rohit @ Guddu accompanied them in the car and thereafter got down on the way.

Though, it is suggested on behalf of the appellant that the girl might had an affair with accused Rakesh Kumar but the same is of little help to the present appellants in the present case for the reason that the consent of the girl aged less than sixteen years, is of little consequence to save the accused who had sexually assaulted her. For the reasons as discussed above this Court is of the view that both the appeals filed by the two convicts are liable to be dismissed. Accordingly, same are dismissed. Conviction and sentence recorded against appellant Rakesh Kumar under Sections 363, 366 and 376, I.P.C., and one as against accused Rohit @ Guddu under Sections 363, 366 and 120B. I.P.C. by learned Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 253 of 2011. are hereby affirmed. Accused/appellant Rakesh Kumar is in jail but accused/appellant Rohit @ Guddu is on bail. His (Rohit @ Guddu) bail is cancelled. He shall surrender before the trial court to serve out the remaining part of the sentence awarded against him. Let a copy of this judgment be sent to the Superintendent of the jail concerned where accused/appellant Rakesh Kumar is serving out the sentence. Lower court record be sent back to make accused/appellant Rohit @ Guddu serve out the remaining part of the sentence.