Sohan Singh Alias Sonu vs State of Uttarakhand

U.C. Dhyani, J.—A complaint (Ext. Ka-1) was written by the informant Sarvesh on 10.12.2009 to the Reporting Outpost Selaqui, police station Sahaspur, District Dehradun, regarding the rape committed by the accused Sonu with informant''s daughter Dolly, aged five years. As per Ext. Ka-1, the informant, who was original resident of Village Mudiya Kurmiyal, police station Puwayan, District Shahjahanpur (U.P.) was residing as a tenant in the house of one Aslam of Village Jamanpur, Selaqui, police station Sahaspur, Dehradun. Sonu s/o Basant, who was a tenant in the house of Kuldeep r/o Pragati Vihar, committed rape with informant''s daughter Dolly, aged five years, on 16.07.2009, at around 11:30 p.m. The rape was committed in a bagia (garden). Chik FIR (Ext. Ka-6) was lodged on 17.07.2009, at 09:30 a.m. The distance between the place of occurrence and the Reporting Outpost concerned was 1� km. The incident took place in the night. The chik FIR was lodged at an earliest opportunity on the next day at 09:30 a.m. The same was registered as case crime No. 30 of 2009 u/s 376 of IPC against accused Sonu.

After the investigation, a charge-sheet (Ext. Ka-12) was submitted against the accused Sohan Singh alias Sonu in respect of offence punishable u/s 376 of IPC. The case was committed to the Court of Session. When the trial began and prosecution opened its case, charge for the offences punishable under Sections 363, 366 and 376(2)(f) was framed against the accused, to which he pleaded not guilty and claimed trial.

Five witnesses, namely, PW 1 Dolly (victim), PW 2 Sarvesh, PW 3 Dr. Sujata Singh, PW 4 Constable Diwan Singh and PW 5 SI Manoj Manwal were examined on behalf of the prosecution. After the prosecution evidence was closed, incriminating evidence was put to the accused u/s 313 of Cr.P.C., in which he said that he was falsely implicated in the case. As many as 16 questions were put to him, in reply to which, he said that the prosecution witnesses were telling a lie. DW 1 Jeetu was examined in defence. After considering the evidence on record, learned court below convicted accused Sohan Singh alias Sonu of the offence punishable u/s 376(2)(f) of IPC. He was sentenced to undergo rigorous imprisonment for 10 years along with a fine of Rs. 2,000/-, in default of payment of which he was required to further undergo simple imprisonment for one month. The accused was also convicted under Sections 363 and 366 of IPC and was sentenced appropriately. Aggrieved against the said judgment and order, present criminal appeal was preferred by the accused-appellant from jail.

PW 1 Dolly was aged five years on the date of her deposition. After conducting her voir dire, PW 1 was examined before the trial court, who was satisfied that PW 1 was capable of understanding the things. PW 1 started weeping when she saw the accused in the court. She was offered chair by the Presiding Officer, but she got up from the chair and started going out of the court, no sooner she saw the accused. PW 1 was perplexed after looking at the accused in the court. When the trial court asked PW 1 as to what was the name of the accused, she replied that he was Sonu. PW 1 again started weeping. Her demeanour was noted by the learned Presiding Officer. PW 1 said that she was laid on the floor by the accused, who committed rape with her. PW 1 was taken to bagia (garden) in the night. Accused took PW 1 to the bagia when her parents were not present in the house. Her parents had gone to pay rent to the landlord. PW 1 was all alone in her house and was sleeping. Accused lifted her and took her to bagia. PW 1 also said that she was sexually assaulted by the accused. Her vagina bled. Thereafter, PW 1 started crying bitterly in the court. PW 1 also pointed out to the court as to what she meant by vagina. In the cross-examination, when a suggestion was given to PW 1 that she was tutored by her mother to say so, PW 1 again started crying. When the same incident was repeated to PW 1, she denied that she was giving the evidence on being tutored by her parents.

The evidence tendered by PW 1 inspires confidence. There was no reason to believe that PW 1 was telling a lie. The tone and tenor of her testimony was beyond suspicion. After all, why a girl, aged five years, will falsely implicate anybody? Her demeanour in the court was also noted and appreciated by the trial court. There appears to be no reason to disbelieve the prosecution story, subject to discussion of other evidence tendered by the prosecution in this behalf.

PW 2 Sarvesh was the father of the victim. PW 2 said, in the examination-in-chief, that he had two children namely, Dolly and Roily. Dolly was aged five years. PW 2 said that on 16.07.2009, at around 10:00 p.m., he went to pay the rent to Aslam, his landlord. PW 2 was accompanied by his wife. The victim was all alone in the house. It was night. They remained away from the house for about 45 minutes. When PW 2 returned to his house, he found that his daughter was not present there. PW 2 started making a search for his daughter. Having had found no clue, PW 2 went to the bagia, where Dolly was found naked under a tree. Victim''s vagina was bleeding. Victim''s undergarment was soaked with blood. PW 2 saw Sonu running away from the place. A lamp-post was there. PW 2 knew accused Sonu, as he was frequent visitor to PW 2''s house. PW 2 took his daughter and came to police outpost. Victim was then taken to the Medical Officer. Then again PW 2 came to the Reporting Outpost, where the report was lodged. The Investigating Officer took the undergarment of the victim in his possession. A memo (Ext. Ka-2) was prepared in respect thereof. PW 2 also proved his complaint (Ext. Ka-1). The police, on 17.07.2009, at 04:00 p.m., also took the underwear of the accused in possession, a memo (Ext. Ka-3) whereof was prepared. The undergarment of the victim and the underwear of the accused, both contained bloodstains. The undergarment of the victim was exhibited as Mat. Ext. 1 and the underwear of the accused was exhibited as Mat. Ext. 2. The victim was taken to Doon Hospital, where she was medically examined.

In his cross-examination, PW 2 said that he was originally a resident of Shahjahanpur, Uttar Pradesh. He was illiterate. PW 2 was a tenant of Aslam, who died leaving three sons behind him. Aslam''s house was situated at a distance of 50-60 meters from PW 2''s house. There were about 10-11 tenants living in the vicinity of the house of PW 2. It took him about half an hour to reach Aslam''s house. It was not raining. A search was made for the victim in the neighbourhood. Baburam along with his wife, Lallan and his mother also accompanied PW 2. PW 2 heard the screams of the victim in the bagia (garden). PW 2 reached the Medical Officer at around 11:30 p.m. No policeman was found on PW 2''s way to the doctor. PW 2 also made a search for the accused. PW 2 heard the screams of his daughter from a distance of 5-10 meters. The victim was lying amidst bushes. PW 2 was carrying torch with him when he saw the accused running away. The accused was running away naked. Thus, nothing came out in the cross-examination of PW 2 to indicate that he was telling a lie. PW 2 withstood the rigour of cross-examination. The evidence tendered by PW 2 was believable.

PW 3 Dr. Sujata Singh was posted as Medical Officer on 17.07.2009 in the Doon Women''s Hospital. PW 3 conducted medical examination of the victim on the said date. The victim was accompanying by lady constable Harvinder Kaur and constable Satish Chandra. The breasts of the victim were not developed. Axillary and pubic hairs were absent. No mark of injury was seen on her body. There was no external injury on her private parts. Vagina admitted tip of finger. Hymen torn fresh. Although there was no active bleeding, but there was laceration on left labia minora. The vaginal smear taken with swab was sent for histopathology. The victim was also referred to the Radiologist for conducting x-ray for determination of her age. The vaginal swab was also taken for histopathology of gonococci and spermatozoa. PW 3 proved medico-legal report (Ext. Ka-4).

Upon receiving the reports of the Pathologist and the Radiologist, PW 3 submitted supplementary report (Ext. Ka-5). The pathology report was negative for spermatozoa. In the radiology report, all epiphysis around wrist, elbow and knee were not fused. The victim was found to be around six years of age. In the examination-in-chief, PW 3 said that such an injury, which occurred to the victim, was possible, if somebody has committed rape with her on 16.07.2009, at 11:30 p.m. In the cross-examination, PW 3 admitted that she wrote in Ext. Ka-5 that no definite opinion regarding rape could be given.

PW 4 Constable Diwan Singh was a formal witness, who proved chik report (Ext. Ka-6) and entries (Ext. Ka-7 and Ext. Ka-8) made in the General Diary. PW 5 SI Manoj Manwal was the Investigating Officer of the case. PW 5 took the statements of the witnesses during investigation, inspected the place of occurrence, prepared site plan (Ext. Ka-9), took the victim to the Magistrate for recording her statement. The IO also affected the arrest of accused Sohan Singh alias Sonu, an arrest memo (Ext. Ka-10) whereof was prepared. PW 5 also prepared Memo (Ext. Ka-11) of giving the information to the family members of the accused. The undergarment of the victim was sent to the FSL. PW 5 submitted chargesheet (Ext. Ka-12) after obtaining the report of FSL. IO also proved the memo (Ext. Ka-13) of taking into possession of the undergarment of the victim. Memo (Ext. Ka-14) of taking into possession of the underwear of the accused was also prepared. PW 5 also proved the report of FSL (Ext. Ka-15). The report submitted by FSL (Ext Ka-15) was a very important piece of evidence. A stained white coloured neckar of victim and a stained dirty white coloured underwear of accused were sent to the FSL for the purpose of detection of presence of semen and blood examination. After the intensive scientific examination of the exhibits, the FSL vide report (Ext. Ka-15) reported that-

Semen was detected on the neckar as well as the underwear (on both the Exhibits 1 and 2).

Human blood was detected on the neckar of the victim (i.e. on Exhibit 1).

Blood could not be detected on the underwear of the accused (i.e. on Exhibit 2).

In this way the prosecution story was duly corroborated by the medical evidence as well as the report of forensic science laboratory. In other words, the testimony of PW 1 (victim) supported by the evidence of her father (PW 2) was duly corroborated by the evidence of PW 3, the report of FSL and other peripheral evidences given by PW 4 and PW 5.

Although DW 1 Jeetu was brought by the defence in order to cast suspicion on the prosecution story, but the move of the defence boomeranged and DW 1 supported part of the prosecution story in his cross-examination. In the cross-examination, DW 1 said that when he saw the victim, she was looking confused and perplexed. Blood was oozing from her vagina. DW 1 along with PW 2 took the victim to the police station where an FIR was lodged against the accused.

The trial court has elaborately dealt with each and every aspect of the prosecution story including the evidence tendered by the prosecution witnesses. Learned trial court was right in coming to the conclusion that the prosecution story was proved against the accused-appellant beyond reasonable doubt. There was no discrepancy, what to talk of material discrepancy, in the statements of the prosecution witnesses. Even if that was so, that was bound to come while narrating the story of such offence in a natural way. The evidence has to be looked into from the point of view of a prudent person. Judging by this yardstick, it is amply proved beyond shadow of any reasonable doubt that the accused-appellant Sohan Singh alias Sonu committed rape with a five year old girl and he thereby, committed an offence punishable u/s 376(2)(f) of IPC along with offences punishable under Sections 363, 366 of IPC. The impugned judgment and order, as also the conviction and sentence awarded to the convict are affirmed.

No interference is called for in the impugned judgment and order. This Court is unable to take a view contrary to what was taken by the court below. There appears to be no illegality in the impugned judgment and order passed by the court below. The criminal jail appeal lacks merit and is accordingly dismissed. Let a copy of this judgment be sent to the Superintendent of jail concerned, where the appellant is currently serving out the sentences. The lower court record be sent back to the court below along with a copy of this judgment.