Rinku @ Radhey vs State Of Uttarakhand
2023 Latest Caselaw 2271 UK

                                              Reserved on:04.07.2023
                                              Delivered on:17.08.2023


HIGH COURT OF UTTARAKHAND AT NAINITAL

              Criminal Jail Appeal No. 6 of 2021

Rinku @ Radhey                                      ........Appellant

                              Versus

State of Uttarakhand                            ........Respondent
Present:-
      Mr. Arvind Vashishtha, learned Amicus Curiae assisted by Ms.
      Disha Vashishtha and Ms. Nidhi Thapa, learned counsel for the
      appellant.
      Mr. J.S. Virk, learned Deputy Advocate General for the State.

Coram :       Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

Per: Hon'ble Pankaj Purohit, J.

This appeal preferred by the appellant from jail is directed against the judgment and order dated 10.11.2020, passed by learned Special Sessions Judge, Bageshwar in Special Sessions Trial No. 13 of 2020, State Vs. Rinku @ Radhey, whereby the trial court vide the impugned judgment and order has convicted and sentenced the accused - appellant as follows:-

S. No. Conviction Sentence Fine Sentence in-

lieu of fine

1. 363 IPC Five years Rs.5,000/- One month Rigorous additional Imprisonment imprisonment

2. 366-A IPC Seven years Rs.5,000/- One month imprisonment additional imprisonment

3. 120-B IPC Five years Rs.5,000/- One month Rigorous additional Imprisonment imprisonment

4. 6 of POCSO Eleven years Rs.20,000/- Two months Act, 2012 Rigorous additional Imprisonment imprisonment

All the aforesaid sentences were directed to run concurrently.

2. Facts in brief are that the mother of victim lodged a report Ex. Ka-5 at Chauki Kameri Devi, Police Station Kanda on 26.04.2020, District Bageshwar stating therein that her daughter aged 16 years had gone somewhere in the noon of 24.04.2020 without informing anyone and when her son searched for her daughter, it was revealed that the victim used to converse with the appellant. Rinku @ Radhey, a J.C.B. driver who was a tenant of Rajendra Singh Bisht s/o of Madhu Singh Bisht of our village. While searching, when the informant went to the house of Rajendra Singh, the appellant was found there, who on being inquired stated that he would get the victim. Meanwhile son of the informant was going inside the house to look for the victim, but Rajendra Singh did not allow him to enter the house. Taking advantage of this situation, the appellant fled-away enticing her daughter, who was minor.

3. On the basis of the aforesaid report a chick FIR Ex. Ka-3 was registered against the appellant on 26.04.2020 at about 12:30 hours under Sections 363 and 366 IPC against appellant and a Case Crime No.13 of 2020 was registered. During investigation, the victim was recovered on 27.04.2020 at 22:50 hours near Chaman Thal village. She was medically examined on 28.04.2020 in District Hospital, Bageshwar. Her statement under Section 164 Cr.P.C. was recorded on 30.04.2020. The Investigation Officer prepared the spot map of the house of the victim as well as that of the place of occurrence. The appellant was arrested; blood sample of appellant and that of the victim were sent to the Forensic Science Laboratory for the purpose of DNA examination. The victim was given in the custody of her mother; and, thereafter, on completion of the investigation, a charge-sheet Ex. Ka-14 was filed against the appellant in the Court.

4. After committal of the case, the charges were framed against the appellant under Sections 363, 366-A,

376(2)(n), 120- B and Sections 5 (l)/6 and 16/17 of the Protection of Children from Sexual Offences Act, 2012 (for short "the Act") by the trial court. The appellant denied the charges and claimed to be tried.

5. The prosecution in order to prove its case has produced ten witnesses namely, P.W.1 - victim, P.W.2-victim's mother, P.W.3- Victim's brother, P.W.4-Kundan Singh Mehra, P.W.5-H.C. Const.,70 C.P. Keshav Lal, P.W.6-Prahlad, P.W.7- Dr. Reema Upadhyaya, P.W.8-Lady Const.238 C.P. Mamta Arya, P.W.9- Const. 197 CP Prakash Singh Gaida and P.W.10- Surabhi Rana.

6. Thereafter, the statement of the appellant was recorded under Section 313 of the Code, in which, he pleaded false implication and stated that the witnesses have deposed falsely against him.

7. At the conclusion of the trial, the trial court proceeded to convict and sentence the appellant, as mentioned in para no.1 of this judgment.

8. The victim while being examined as P.W.1 in the court has deposed that she knew the residence of the appellant since he was doing work nearby his house. According to the victim on 24.04.2020, her bother (P.W.3) saw her talking over mobile phone, on which he slapped her 2-3 times, the victim threw the mobile phone in the field. In the evening of the same day, the victim went to the appellant to return the said mobile phone since it was given to her by the appellant one month back. When she returned the phone, the appellant did not allow her to go back home, though she insisted to go back. On that night, the appellant kept her in his room. The appellant was staying in the house of one Rajendra Singh and on that day the appellant established physical relations with her. On the next day i.e., 25.04.2020,

victim's brother came to search for her. When her brother inquired Rajendra Singh as to where his sister (victim) was, he replied in negative. On that day, she was in the room of the appellant, meanwhile, her brother met with the appellant and demanded his (appellant's) mobile phone, which he denied. When her brother inquired from the appellant about as to where his sister was, the appellant stated that he did not know anything about her. Meanwhile, there was a scuffle between the two, on which, the appellant stated that he would get the victim soon. When the appellant went inside the house, victim's brother was pushed back by Rajendra Singh and then the appellant took the victim towards jungle. In jungle also the appellant established physical relations with her. She has also stated that when she refused, the appellant threatened the victim with her life. In the morning of 27.04.2020 while the appellant was taking her towards another jungle, Police reached there and caught the appellant along with the victim. Thereafter, victim's statement was recorded under Section 164 of the Code. She proved her High School Examination Certificate in the Court as Ex. Ka-2.

9. P.W.2 informant and mother of victim in her evidence has stated that on 24.04.2020 her son saw the victim talking over phone. When her son inquired the victim as to from where she got the phone when no answer was given, her son slapped her, on which, she threw the phone in the field and went away from the house and did not return till night. When they began to search for her, she could not be found for the entire night. On the next day also search was done but when she was not found, P.W.2 going alongwith her son lodged a report in Chauki Kameri Devi, District Bageshwar. Thereafter, on the inputs of village people, they went to the house of Rajendra Singh and called the appellant down the house. Her son asked the appellant to bring the victim out of the room, however, he went inside and fled-away taking the

victim along with him. Thereafter, she lodged a report of the incident and then only her daughter could be recovered.

10. P.W.3 is the brother of the victim, who has corroborated with the statements of P.W.1 and P.W.2.

11. P.W.4-Kundan Singh Mehra is the person, who has deposed that he along with brother of the victim and one Heera Singh went to the house of Rajendra Singh, where the appellant was staying. He has deposed that due to the scuffle between the brother of the victim and Rajendra Singh, the appellant fled away with the victim.

12. P.W.5-H.C. Keshav Lal is a formal Police witness, who has proved preparation of chik FIR and of making entry in the general diary.

13. P.W.6-Prahlad Singh is the witness of recovery of victim on 27.04.2020 at 22:50 hours. He has proved preparation of recovery memo Ex. Ka-6 as well as the arrest memo of the appellant Ka.7.

14. P.W.7-Dr. Reema Upadhyaya is the Medical Officer, who conducted the medical examination on the body of the victim.

15. The following observations were made by P.W.7:-

"Local Examination:- Public hairs labia majora minora vestibule, clitoris normal, hymen ruptured, bleeding per vaginal examinations giving menstrual history of LMP. 26.04.2020.

No evidence of any injury at any internal or external body parts."

16. P.W.8-Constable Mamta Arya is a witness, who has proved recovery of victim on 27.04.2020 and preparation of recovery memo Ex. Ka 6. She has proved the arrest of the appellant at 22:50 hours on 27.04.2020.

17. P.W.9-Constable Prakash Singh Gaira is also a witness of memo of recovery of victim (Ex. Ka 6).

18. P.W.10-S.I. Surbhi Rana, is the Investigating Officer of the case. During examination, she recovered the victim, got her statement recorded under Section 164 of the Code in the Court of the Magistrate; prepared the site-plan of place of recovery and arrested the applicant-Rinku @ Radhey. She has also proved about sending the blood sample of victim and that of appellant for the purpose of D.N.A. examination and submission of charge-sheet (Ex. Ka-14) against appellant in the Court. She has also proved the report of F.S.L. Ex. Ka-

16.

19. Thereafter, the statement of the appellant under Section 313 of the Code was recorded, in which, he denied the allegations made against him and stated that he has falsely been implicated in the crime.

20. We have carefully heard learned counsel for the parties and perused the entire material available on record with the help of learned counsel for the parties.

21. At this stage, it is necessary to mention that Forensic Science Laborartory (for short "F.S.L.") was also submitted by Uttarakhand. The report Ex. Ka-16 concludes that;

Report No.: FSL-654(Bio/DNA)/2020 Dated: 22-08-2020

Result of examination for detection of semen and blood:

1. Semen was detected on Exhibits 7 and 8.

2. Semen could not be detected on Exhibits - 1, 3, 4, 5, 6, 10, 11, 12 and 13.

3. Human blood was detected on Exhibit-1, 4, 5, 7 and 8. 4.

4. Blood could not be detected on Exhibits-3, 6, 10, 11, 12 and 13.

Result of DNA Examination:

1. The DNA test was performed for Exhibits - 1, 4, 5, 6, 7, 8, 9 and 14.

2. The alleles were amplified at each loci to obtain the DNA profiles of the sources of the Exhibits - 1, 4, 5, 6, 7, 8, 9 and 14.

3. The DNA profiles, obtained from the Exhibits - 1, 4, 5 and 6 (vulval swab, vaginal swab, oral swab and nails of victim) are from a single female human source and matching with the DNA profile obtained from the Exhibit - 9 (blood sample of victim).

4. The mix DNA profiles obtained from each of the Exhibits - 7 and 8 (panty and lower of victim) are matching with the DNA profiles obtained from both the Exhibits - 9 and 14 (blood sample of victim and blood sample of appellant).

CONCLUSION

1. The DNA obtained from the Exhibits - 1, 4, 5 and 6 (vulval swab, vaginal swab, oral swab and nails of victim) are from a single female human source and matching with the DNA obtained from the Exhibit - 9 (blood sample of victim).

2. The mix DNA obtained from each of the Exhibits - 7 and 8 (panty and lower of victim) are matching with the DNA obtained from both the Exhibits - 9 and 14 (blood sample of victim and blood sample of accused).

22. It is argued by learned Amicus Curiae that on the entire record it was not proved by the prosecution that the victim was enticed away by the appellant. In order to substantiate his argument, he took this Court through the statement of the victim recorded by the learned Chief Judicial Magistrate, Bageshwar; the evidence of the victim, who was examined as P.W.1, during the trial. He further submitted that it is not a case of exploitation of the victim at the hands of appellant. He emphatically submitted that it is a case, where appellant and the victim were known to each other. The appellant was a J.C.B. Driver and lived in a rented accommodation in the village of victim, in the house of Rajendra Singh, who was (jiju) (husband of her father's sister). The appellant had given a mobile phone to the victim on 24.04.2022. The brother of the victim - Deepak Singh found

her talking over mobile-phone and scolded her and slapped her while asking her as to whom she was talking and to give him the mobile-phone.

23. Learned Amicus Curiae further submitted that due to the reason that her brother had beaten up her, she left the home and went to the house of Rajendra Singh (jiju) (husband of her aunt), where the appellant was a tenant. On 25.04.2020, when the brother of victim came to the house of Rajendra Singh searching for the victim and asked the appellant where the victim was? When the appellant expressed his ignorance to it, a scuffle took place between them. In-between, the appellant went inside the house saying that he would bring the victim and went into the forest along with the victim.

24. It is further argued by learned Amicus Curiae that neither in her statement recorded under Section 161 of Cr.P.C. nor did under Section 164 of Cr.P.C., the victim state that the appellant made physical relations with her. But only on her being examined as P.W.1 during trial, she stated for the first time that the appellant made physical relations with her in the house of Rajendra Singh and later on, in the forest. It is vehemently submitted by learned counsel for the appellant that the victim developed the story of making sexual relations for the first time when she was examined as P.W.1 before the court, and as such, the same does not inspire any confidence. In her evidence before the court, she admitted in her cross-examination in para no.13 of her evidence that the fact of making sexual relations by the appellant with her and of threatening her of life, which she stated in her examination in-chief, are not there in her statement under Sections 161 and 164 of the Code. She admitted that this fact she is stating for the first time today in the court (eaSus viuh eq[; ijh{kk esa vfHk;qDr }kjk "kkjhfjd lEcU/k cukus ij /kedkus o tku ls ekjus okyh ckr tks dgh gS] og esjs ?kkjk 164 na0iz0la0 o /kkjk 161 na0iz0l0 ds c;kuks esa ugha gSA mDr ckr eSa vkt ek0

U;k;y; esa igyh ckj dg jgh g¡Aa ;g dguk xyr gS fd eSa vius HkkbZ ds ekjihV ds Mj ls vfHk;qDr ds f[kykQ xyr xokgh ns jgh gksÅA ;g dguk Hkh xyr gS fd esjs eEeh vkSj HkkbZ us vfHk;qDr ls iSlksa dh fMek.M dh gks] vfHk;qDr }kjk u fn;s tkus ds dkj.k] eSa mlds f[kykQ vkt ek0 U;k;y; esa xyr xokgh ns jgh gksÅA ;g dguk Hkh xyr gS fd vfHk;qDr }kjk esjs lkFk fdlh Hkh rjg ds "kjhfjd lEcU/k u cuk;s gks vkSj og eq>s taxy esa Hkkxdj u ys x;k gksA"

25. The learned Amicus Curiae took this Court to the fact, in which, it has been admitted by the prosecution that the victim left the company of the appellant out of her own sweet will and volition, when she was beaten up and scolded by her brother for the reason that she was having a mobile and was talking to the appellant. Rest of the story of the sexual harassment of the victim was a development just in order to falsely implicate the appellant.

26. The learned Amicus Curiae also drew the attention of this Court to the Medical Examination Report (Ex. Ka-9) of the victim. P.W.7-Dr. Reema Upadhyaya medically examined the victim on 28.04.2020 at 02:00 P.M. in District Hospital, Bageshwar and stated that there was no injury found on the person and private parts of the victim. The Doctor who is P.W.7, in medical examination report has written that "no evidence of any injury at any internal or external body parts" of the victim was not found. Thus, according to the learned Amicus Curiae, the story of sexual assault is not supported by the medical examination as well. He emphatically argued that the appellant was falsely implicated with the crime.

27. Per-contra, Mr. J.S. Virk, learned Deputy Advocate General for the State submitted that the victim was a minor and according to High-School Certificate, her date of birth was 06.04.2004 and according to this, on the date of incident of occurrence i.e., 24.04.2020, she was minor and was running on the 17th year of her age.

28. Learned Deputy Advocate General further submitted that the prosecution-victim, in her evidence before the Court as P.W.1 categorically stated that the appellant made sexual relations with her on 24.04.2020, in his rented room in the house of Rajendra Singh and also in the forest between Devtoli and Khati village on 26.04.2020 and threatened her with life.

29. Apart from this, it was also submitted by the learned Deputy Advocate General for the State that as per the F.S.L Report (Ex. Ka-16), the D.N.A obtained from the Exs. 1, 4, 5 and 6 (Vulva swab, vaginal wab, oral swab and nails of the victim) matched with the D.N.A. obtained from Ex-9 (blood sample of the victim). The D.N.A. obtained from Exs. 7 and 8 (panty and lower of the victim) are matching with the D.N.A obtained from Exs. 9 and 14 (blood sample of the victim and blood sample of the appellant).

30. It is submitted by learned counsel for the State that semen was detected on Exs. 7 and 8 (panty and lower of the victim), thus from the evidence of the victim, coupled with the D.N.A. Report, the prosecution has proved beyond reasonable doubt that the victim was sexually assaulted by the appellant.

31. Learned counsel for the State fairly admitted that except the evidence before the court as P.W.1, the victim has nowhere stated that she was sexually assaulted by the appellant. When the F.S.L Report was put to the learned Amicus Curiae seeking his reply about matching of victim's D.N.A. with that of D.N.A. of appellant, it is strenuously argued by him that the Report is not conclusive proof in absence of any material supporting the case of prosecution.

32. It is also submitted by learned Amicus Curiae that the expert opinion is not a substantive piece of evidence and

there must be strong evidence against the appellant for nailing him with the crime.

33. Having heard the learned counsel for the parties and after given a thoughtful consideration to the evidence available on record, this Court comes to this conclusion that the prosecution has miserably failed to prove the fact that the victim was kidnapped by the appellant from the lawful custody of her guardian. From the appreciation of evidence available on record, it comes out that victim left her house on her own free will and volition and went in the house of her (Jiju) (husband of her father's sister), in her village and from there, she went with the appellant being terrified by the aggression of her brother, who came to the house of Rajendra Singh Mehra on 25.04.2020 and committed maar-peet with the appellant.

34. It has also come in the evidence of the victim that had her brother not beaten her up, she would have not left her house. She also stated that Rajendra Singh Mehra was her relative whom she knew and all the family members of the victim were in well acquaintance with him as he was (Jiju) (husband of her father's sister aunt).

35. From perusal of the evidence, it appears that for the first time in her evidence recorded before the trial court, the victim came up with a case that the appellant made sexual relations with her. The same facts of making sexual relations has nowhere been stated by her earlier either in her statement given to the Investigating Officer under Section 161 of the Code or in her statement recorded by the learned Chief Judicial Magistrate, Bageshwar, under Section 164 of the Code, which was recorded soon after her recovery on 30.04.2020. Thus, it can safely be said that the story of having sexual relations with the appellant is a development. In the absence of cogent evidence, the F.S.L. Report, which is not

a substantial piece of evidence, cannot be used to infer that she was ravished by the appellant.

36. In a very recent judgment, the Hon'ble Apex Court had an opportunity to consider the evidentiary value of the D.N.A Report, in the case of "Rahul v. State (NCT of Delhi)", (2023) 1 SCC 83. The Hon'ble Apex Court did not rely upon the D.N.A Reports, mainly; on the ground that there is a procedure to collect the D.N.A. if the sample for D.N.A sample is not taken and preserved in a proper manner, the possibility of tampering with the sample collected could not be ruled out. For ready reference, para nos. 37 and 38 of the aforesaid judgment are stated hereinbelow:-

"Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed and sent for DNA profiling.'

38. It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the investigating officer on 14-2-2012 and 16-2-2012; and they were sent to CFSL for examination on 27-2-2012. During this period, they remained in the malkhana of the police station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the trial court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly

when the collection and sealing of the samples sent for examination were also not free from suspicion."

37. In the case in hand, there is no evidence on record as to when the sample for D.N.A test was taken by the prosecution from the victim as well as from the appellant and when the same was sent to the F.S.L. It is also not available on record that under which kind of safety, the sample was preserved in-between with the Police/Investigating Agency. In this view of the matter, no reliance can be made on the F.S.L. Report (Ex Ka-16).

38. It appears more convincing that the appellant being a Nepali labour has falsely been implicated only for the reason that he was in talking terms with the victim, which was not liked by her brother P.W.3. The appellant gave shelter to her when she went to Rajendra Singh Mehra's house.

39. From the record, it is also proved that the victim was 17 years of age and the appellant was 21 years of age at the time of incident, and the case appears to be a case of infatuation between the victim and the appellant. The prosecution miserably failed to prove its case against the appellant beyond all reasonable doubts.

40. In such view of the matter, we are of the considered opinion that the judgment and order dated 10.11.2020 passed by the court of learned Special Sessions Judge, Bageshwar in Special Sessions Trial No. 13 of 2020, State Vs. Rinku @ Radhey, convicting and sentencing the accused-appellant as above cannot be sustained, and is hereby set aside. Appellant is acquitted of the charges under Sections 363, 366-A, 120-B IPC and 6 of POCSO Act, 2012.

41. Accordingly, the present criminal jail appeal is allowed. The appellant is in jail. He shall be released forthwith

from the jail, if not required in connection with any other offence.

42. Let the LCR be sent back to the trial court to do the needful.

2.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

SK