Rajat vs State Of Uttarakhand
2021 Latest Caselaw 143 UK

      IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

              Criminal Jail Appeal No.59 of 2019


Rajat, S/o Sri Ramashanker, R/o Village Gaucharant, P.S.
Pehua, Kurukshetra, Haryana
                            ...........Applicant/appellant
                                                (In Jail)


                               Versus

State of Uttarakhand                           .........Respondent

Ms. Swati Verma, learned Amicus Curiae for the appellant.
Mr. V.S. Rathore, AGA for the State.

Hon'ble Lok Pal Singh, J.

The present Criminal Jail Appeal is directed against the impugned judgment and order dated 14.06.2019 passed by Special Judge, POCSO, Additional Sessions Judge, Dehradun in Case Crime No.209 of 2018 (S.T. No.76 of 2018), under Sections 363, 366A & 376 of IPC & 5/6 POCSO Act Chalani Thana Sahaspur, Dehradun, before the Additional District and Sessions Judge, F.T.C., Special Judge, POCSO, Dehradun, whereby, the appellant has been convicted for the offences punishable under Sections 363 of IPC and Section 6 of POCSO Act and sentenced for rigorous imprisonment of 10 years and a fine of Rs.40,000/- has been imposed. Out of the fine of Rs.40,000/-, Rs.20,000/- has been directed to pay the victim. The appellant has been convicted for rigorous imprisonment of three years and a fine has been imposed and in case of non-payment, the appellant shall serve the sentence of more than one

year or one month respectively. All the sentences shall run concurrently.

2. Facts leading to the present case are that the complainant PW2 (name withheld) lodged the First Information Report on 07.05.2018. The allegations made against the appellant are that his daughter (name withheld) aged about 13 years has been incited by the accused appellant. He tried to search the girl but could not find out anywhere. The incident happens to be on 07.05.2018. He also gave the mobile number of the accused and his daughter. The said FIR has been lodged in this regard. On the said FIR, the Investigating Officer started investigation. Thereafter, the girl was recovered and her statement was recorded under Section 164 of Cr.P.C. stating therein that the incident happens to be on 06.05.2018. She deposed that when she was going to meet her mother, on the way, the accused called her through indication and told her that he loves her and wants to marry with her. She told in her statement that initially she had gone to Paunta Sahib Gurudwara via Himachal with the accused against her Will, while he made physical relations with her. Next day, the accused appellant had gone to the house of his sister with her at Abohar, Haryana. Thereafter, the accused appellant had gone to his native place with her at Pehua Kurukshetra and also got married in a temple. They have been arrested by the police on 10.05.2018 from Ballupur Chawk.

3. It is averred that the girl was medically examined and no external or internal injury was found on her body. The doctor opined that no definite opinion of rape can be given. The accused has been shown to be arrested as per arrest memo on 12.05.2018 at about 11.15 midnight. After investigation, the Investigating Officer submitted the charge-sheet against the appellant for the offences punishable under Sections 363, 366A & 376 of IPC & 5/6 POCSO Act.

4. The learned Special Judge, POCSO, Dehradun framed the charges against the accused appellant for the offence punishable under Sections 363, 366A & 376 of IPC & 5/6 POCSO Act. The accused appellant pleaded not guilty and claimed to be tried. On denial of guilt, the prosecution got examined as many as six witnesses. P.W.1 (name withheld) (victim), P.W.2 (name withheld) (father of the victim), P.W.3 Dr. Manju Chand, P.W.4 (name withheld) (mother of the victim), P.W.5 Laxmi Joshi (S.I.) and P.W.6 Subhash Verma (Principal of the School). Thereafter, oral and documentary evidence was put to the accused person under section 313 Cr.P.C. in reply to which he stated that he has been falsely implicated in the instant case. He denied the allegations as levelled against him. The learned Trial Court by the impugned judgment and order dated 14.06.2019 has convicted the appellant for the offence and sentence accordingly.

5. In Examination in Chief, the prosecutrix stated that she travelled with the accused at different

places where the accused appellant developed physical relations with her against her will. In cross examination, she could not support her Examination in Chief and she stated that she is not aware where she had gone with the accuse appellant. However, she states that the physical relationship was made by the accused appellant with her against her will. P.W.2 the father of the prosecutrix deposed that the date of birth of her daughter is of 08.02.2005 and the accused appellant was known to him. The incident is of 07.05.2018. The prosecutrix had gone out of the house but did not return back. In cross examination, he deposed that her daughter had gone out of the house at 5:00 to 5:30 P.M., but the accused did not take her daughter in his presence. He states that he was not having the phone number of the accused and his photo was downloaded by him from the website of the facebook. Thereafter, a missing complaint of her daughter was lodged. He also admitted that such complaint is not on record. He also states that on the date of complaint, his daughter was missing from 5-6 days. He also states that he had not seen that the prosecutrix was accompanying with the accused. P.W.3 Dr. Manju Chand, who conducted the medical examination of the prosecutrix, stated that neither any injury on the body nor blood stained, sperm etc. were found on the clothes of the prosecutrix. It is stated that the girl was not under fear and mental trouble. She also states that she was not informed by the victim that the girl was taken by the accused appellant. P.W.4 the mother of the prosecutrix in her statement has deposed that the date of birth of the

victim is 08.02.2005. The incident happens to be on 07.05.2018. In cross examination, she states that the incident is of 07.04.2018. When victim had gone, before that she met with the accused appellant. None had informed that victim had gone with the accused. She also admits that on the basis of doubt, a missing report was lodged. P.W.5 Laxmi Joshi (S.I.) was examined. She stated that the girl and the accused were recovered from near Ballupur Chawk. The statement of the victim under Section 164 Cr.P.C. was recorded on 16.05.2018 and after investigation, the charge-sheet was submitted. In cross examination, she admitted that the victim has not given the statement that where she was taken by the accused. On her cross examination, she states that none was ready to give evidence. She also states that she did not made any efforts to trace the location of the mobile of the accused and the victim. P.W.6 Subhash Verma (the Principal of the School) was examined who stated that the Date of Birth of the victim is 07.05.2018 in the register.

6. Heard learned counsel for the parties and perused the record.

7. Learned counsel for the appellant would submit that the appellant has been falsely implicated on the basis of enmity with the father of the prosecutrix. She submitted that there is no indication of rape upon the victim as per the statement of P.W.3 Dr. Manju Chand. Learned counsel for the appellant submits that the investigation has been done in a cursory manner. It is further submitted that the statement of the prosecutrix was recorded by the

Judicial Magistrate-IIIrd, Dehradun, but there is no mention the date in the same.

8. Perusal of the statement of the prosecutrix recorded under Section 164 of Cr.P.C. would depict that when the statement was made by the prosecutrix, the learned Judicial Magistrate-IIIrd, Dehradun has not mentioned the date. Learned counsel for the appellant would submit that the statement of the prosecutrix was recorded on 11.05.2018. The appellant and the prosecutrix were allegedly arrested on 10.05.2018 from Ballupur Chawk. A perusal of arrest memo would depict that the arrest of the appellant has been shown on 12.05.2018 at 11.15 midnight. The arrest memo Exbt. Ka-7 would depict that the place of arrest has not been mentioned. The date of birth of the prosecutrix, as per school register, is 05.02.2005 and on the date of alleged incident, the victim was minor.

9. Learned counsel for the appellant has invited the attention of this Court towards the forensic report and she would submit that in the forensic report, there is overwriting in the date of incident and the date of report has not been mentioned. On perusal of the forensic report paper no.19B, it would depict that no date is mentioned only the date ..../05/2018 is written. On further perusal of the report, it would depict that initially the date of incident has been shown on 04.05.2018 and after overwriting it has been mentioned as 07.05.2018. The learned Amicus Curiae for the appellant would submit that there are major

contradictions in the prosecution witnesses. She would further submit that the appellant, who is in jail, has been falsely implicated. Learned counsel would further submit that being the poor person the appellant could not contest the case by engaging a lawyer and the case was contested by learned Amicus Curiae on behalf of the appellant. Learned counsel would submit that according to the statement of the prosecutrix recorded under Section 164 of Cr.P.C. they were arrested by the police from Ballupur Chawk on 10.05.2018. However, the statement of the prosecutrix was recorded on 11.05.2018. She would further submit that since the arrest of the appellant has been shown on 12.05.2018 at midnight and the place of arrest has not been mentioned, therefore, the documentary and oral evidence of the prosecution itself makes a prosecution case doubtful.

10. The prosecutrix in her statement has admitted the fact that she is about 20 years of age and got married with another person. Though the age in her School Living Certificate appears to be 13 years, but in her statement she herself has deposed that she is about 20 years of age and married with another person. In case, she would have been 13 years of age, there was no occasion for her that she could have married with another person which again creates a doubt against the prosecution case. A false implication of the appellant cannot be ruled out as it has come on record that there was an enmity between the father of the prosecutrix and the accused appellant.

11. Having heard learned counsel for the parties, this Court is of the view that none of the ingredients under Section 376 has been proved by the prosecution beyond reasonable doubt against the appellant. Thus this Court is of the view that the learned court below has committed illegality in convicting the appellant for the offences punishable under Section 376 of IPC and sentencing rigorous imprisonment of ten years. In so far as, the conviction of the appellant under Sections 363, 366A & 376 of IPC & 5/6 POCSO Act is concerned, the prosecution utterly failed to prove by cogent evidence that the girl was taken away from the custody of her parents. The prosecution further failed to show that the prosecutrix was recovered from the custody of the accused appellant. On one hand, the prosecution witnesses stated that the victim was recovered from the possession of accused appellant. On the other hand, it is proved from the recovery memo that the girl was not recovered from the custody of the accused appellant. There are major contradictions in the statement of victim recorded under Sections 164 Cr.P.C. The prosecution did not prove the fact that the girl was recovered from the custody of the accused appellant. As per the statement of the prosecutrix and the Investigating Officer, the recovery has not been made from the custody of the accused appellant. Such contradictions cannot be ignored. It is settled position in law that the prosecution has to prove its case beyond reasonable doubt against the accused appellant.

12. The learned Amicus Curiae for the appellant would further submit that since there is no opinion of rape upon the victim, hence, the Trial Court has committed illegality in convicting the appellant for the offences punishable under Section 376 and no case under Section 376 is made out against the accused appellant.

13. Having gone through the material brought on record, this Court is of the view that the prosecution utterly failed to prove its case under Sections 363, 366A & 376 of IPC & 5/6 POCSO Act against the accused appellant. Since the prosecution failed to prove its case beyond reasonable doubt, the accused appellant is entitled to get the benefit of doubt. Therefore, the conviction and sentence is set aside. Consequently, the sentence of ten years rigorous imprisonment and imposition of fine of Rs.40,000/- is hereby set aside. The prosecution also fails to prove that the prosecutrix was kidnapped by the appellant from lawful guardianship. Since the prosecution utterly fails to prove the ingredients of Sections 363, 366A & 376 of IPC & 5/6 POCSO Act and also fails to prove its case beyond reasonable doubt against the appellant, the conviction of the impugned judgment and order is unsustainable in the eyes of law. The appellant is given the benefit of doubt and acquitted for the offences punishable under Sections 363, 366A & 376 of IPC & 5/6 POCSO Act.

14. Accordingly, the present criminal jail appeal is allowed. Impugned judgment and order dated

14.06.2019 passed by Special Judge, POCSO, Additional Sessions Judge, Dehradun in Case Crime No.209 of 2018 (S.T. No.76 of 2018), under Sections 363, 366A & 376 of IPC & 5/6 POCSO Act Chalani Thana Sahaspur, Dehradun, is hereby by set aside.

15. The appellant is in jail. Let the appellant be released forthwith, if not wanted in any other case.

16. Let a copy of this judgment be sent to the court concerned for onward compliance.

17. Lower Court Record be also sent back to the court concerned.

(Lok Pal Singh, J.) 13.01.2021 Ravi