Rajendra Gupta vs State Of Uttarakhand
2023 Latest Caselaw 2462 UK

                            Judgment reserved on: 03.08.2023
                            Judgment delivered on: 24.08.2023

  IN THE HIGH COURT OF UTTARAKHAND AT
                NAINITAL
            Criminal Jail Appeal No.15 of 2019

Rajendra Gupta                                     ........Appellant

                              Versus

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

Present:-
       Mr. Rajat Mittal, Amicus Curiae appearing for the appellant.
       Mr. J.S. Virk, learned Deputy Advocate General alongwith
       Mr. Rakesh Joshi, Brief Holder for the State.

                            JUDGMENT

Coram: Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

Per: Hon'ble Pankaj Purohit, J.

This Appeal is preferred by the appellant from Jail assailing the judgment and order dated 20/21.12.2018, passed by learned FTC/Additional Sessions/Special Judge POCSO, Udham Singh Nagar in Special Sessions Trial No. 199 of 2016, State Vs. Rajendra Gupta, whereby the appellant-Rajendra Gupta has been convicted for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo twenty years' rigorous imprisonment with fine of Rs.50,000/- and, with default stipulation of further six months' additional simple imprisonment; the appellant has further been convicted for the offence punishable under Section 363 of IPC and sentenced to undergo seven years' rigorous imprisonment with fine of Rs.20,000/- and, with

default stipulation of further three months' additional simple imprisonment; the appellant has further been convicted for the offence punishable under Section 367 of IPC and sentenced to undergo ten years' rigorous imprisonment with fine of Rs.30,000/- and, with default stipulation of further three months' additional simple imprisonment and the appellant has further been convicted for the offence punishable under Section 323 of IPC and sentenced to undergo one year rigorous imprisonment with fine of Rs.1,000/- and, with default stipulation of further 15 days' additional simple imprisonment. However, all the sentences are directed to run concurrently and any period of incarceration during trial and appeal shall be set off with the punishment.

2. The facts of the case in brief are that on 19.08.2016, an FIR was lodged by Beni Ram, who is father of the victim, resident of Dudhia Nagar, Ward No.4, Rudrapur, Thana Rudrapur, District Udham Singh Nagar, with the allegations that on 18.08.2016 at about 07:00 PM in the evening, appellant-Rajendra had enticed his 14 year old son and took him away without informing him. On 18/19.08.2016 at around 02:00 hrs in the night, the appellant had left his son in bewildered condition and his son told him that the appellant had assaulted and sodomised him and left here threatening him. On identifying by his son, the appellant was caught with the help of the residents of his locality. Therefore, after registering the report of the accused, a request was made to take legal action against the said person.

3. On the basis of this First Information Report, a chick FIR (Ext. Ka-8) was registered on 19.08.2016 at

09:50 hrs. in ROP Rampura, Police Station Rudrapur, District Udham Singh Nagar, against the appellant Rajendra and a Case Crime No. 71 of 2016 under Sections 323, 377 IPC and Section 3/4 of POCSO Act was registered. On completion of the necessary formalities in the matter by Investigating Officer, the charge-sheet (Ext. Ka-7) against the appellant Rajendra Gupta was sent to the court under Sections 363, 366, 377 and 323 IPC and Section 3/4 of POCSO Act.

4. The cognizance was taken and by summoning the appellant Rajendra Gupta, charges was framed against the appellant on 12.01.2017 under Sections 363, 367, 377 and 323 IPC and Section 3/4 of POCSO Act. The appellant pleaded not guilty and claimed for trial.

5. As many as eight witnesses were produced by the prosecution to prove its case against the appellant to the hilt. They are PW1-Pradeep Kumar (Victim), PW2- Beni Ram (Victim's father), PW3- Dhan Devi (Victim's mother), PW4-Sharda Devi (Victim's neighbour), PW5-Dr. A.M. Sharma (who medically examined the victim), PW6- Inspector Prakash Singh Danu (Investigating Officer), PW7- Rajesh Kumar Yadav (Assistant Teacher, Upper Primary School, Narhinawa Nagla, District Bareilly, Uttar Pradesh) and PW8- Dr. Yatendra Singh.

6. Thereafter, the statement of accused-appellant was recorded under Section 313 Cr.P.C. in which he denied the allegations levelled against him by stating that he has falsely been implicated in a false case due to personal enmity and stated that he is innocent.

7. Now, the appellant is before this Court, challenging his conviction and sentence.

8. Heard learned counsels for the parties.

9. It is argued by the learned Amicus Curiae that the appellant was falsely implicated in the aforesaid crime only for the reason that there was some dispute between the father of the victim and the appellant and he was innocent. Learned Amicus Curiae took us through the evidence of PW-1 (victim) as well as the evidence of PW-2 (victim's father) and argued that the case of the prosecution does not inspire any confidence. There are several contradictions in the evidence of the victim.

10. Learned Amicus Curiae strenuously argued that in the evidence of the victim, he stated that the first information report was lodged by him by dictating to the Inspector and also admitted that he put his signature on the first information report, but, when the attention of the victim was brought to the paper no.3ka/2, he told that the thumb impression thereon was of his father and his signature was not there. It is also submitted by learned Amicus Curiae that the victim (PW-1) being a child of 14 years of age was tutored by his father (PW-2), in order to settle his scores with the appellant. Learned Amicus Curiae also tried to dispute the age of the victim saying that the age of the victim has not been conclusively proved.

11. Per contra, learned State Counsel supported the conviction and sentence awarded by the learned trial court. It is submitted by learned State Counsel that the prosecution has proved its case against the appellant

beyond all reasonable doubt. The case of the prosecution has shown consistency and been proved and supported by the victim from the stage of recording his statement under Section 164 Cr.P.C. and the evidence before the Court. He strenuously submitted that the contradictions as referred by the learned Amicus Curiae are very minor and cannot be considered to doubt the evidence of victim. In material particulars, the evidences of the prosecution witnesses are consistent and trustworthy. It is also submitted that the medical examination of the victim also proved the prosecution case and therefore the appellant has rightly been convicted and sentenced.

12. Having heard the rival contentions of the parties and having gone through the records of the case, it is culled out that the case of the prosecution starts with the lodging of first information report on 19.08.2016 by father of the victim in police station Rudrapur, Udham Singh Nagar.

13. From the perusal of the first information report, it is reflected that on 18.08.2016, 14 year victim did not return his home in the evening and on 18/19.08.2016 at about 02:00 hrs in the night, the victim came back in a distracted condition and told his father that sexual assault was made upon him, after committing maarpeet by the appellant. The first information report was very prompt, which was registered in Police Station Rudrapur on 19.08.2016 at 09:50 hrs., naming the appellant who caught by the people of the locality and was brought to the police station. The victim was medically examined on 19.08.2016 at about 12:15 PM at Jawahar Lal Nehru

District Hospital, Rudrapur and following injuries were found on his medical examination:

"1. Linear contusion red, measuring 5 X 0.5 cm and 7 X 0.5 cm horizontal on lateral aspect of left upper arm in mid region.

2. Abrasion measuring 0.5 X 0.5 cm on back of left elbow, 0.5 X 0.5 cm, 0.2 X 0.2 cm, 0.5 X 0.2 cm on back of right elbow.

3. Contusion measuring 2 X 3 cm on right margin of sternum at levelled 3rd rib- red in colour.

4. Swallowing and pain on both side of cheek (H/o slapping).

5. Contusion measuring 4 X 4 cm on left side of forehead 3 cm above medial side of left eyebrow.

6. Contusion measuring 7 X 3 cm and 8 X 3 cm on left scapular area and 6 X 3 cm and 5 X 3 cm on right scapular area seen on back.

7. Contusion measuring 10 X 10 cm area present on mid back."

According to the medical report, the victim complained of pain; no discharge/stain was seen externally and no H/o staining; no external injury was seen in anal region (H/o defecation in morning and washed with water).

As per the opinion of the doctor, all the injuries were caused by hard and blunt object, duration coincide with given history. Based on above findings, the doctor opined that the person had been sexually abused and had referred to surgeon for scrotal injuries.

14. The statement of the victim was recorded under Section 164 of Cr.P.C. before the learned Magistrate, Juvenile Justice Board/Judicial Magistrate-First Class on

22.08.2016 and in the statement, he imputed allegations against the appellant. In his statement recorded under Section 164 Cr.P.C., victim has categorically stated that on the day of Raksha Bandhan on 18.08.2016, he was having Chowmin at the slope of Dudhiya Nagar at Gupta kiosk; at about 07:00 PM, appellant Rajendra Gupta, who was from the same locality the victim belonged, took him to his house where after closing the door, he gagged his mouth and committed foul play with him; victim vomited and tried to save him, at which he was beaten up and he sustained injuries on his elbow, back, head and chest. According to the victim, the appellant hit his head against the wall; dragged him and kept him since 07:00 PM to 02:00 AM in his house and committed foul play with him; victim somehow left from his clutches; the appellant chased him but the victim reached his house. The same evidence was given by the victim while produce as PW-1 to the Special Sessions Court. PW-2 (victim's father) and PW- 3 (Victim's mother) also supported the prosecution case and stated that on 18/19.08.2016 at 02:00 AM, the victim came back and narrated the entire ordeal to them. In the morning, PW-2-Beni Ram (victim's father) alongwith the residents of his locality went to the house of the appellant- accused and brought him to police station and lodged first information report (Ext. Ka-2) after putting his (PW-2) thumb impression on it.

15. Nothing important could be elicited from these witnesses by the defence. PW-5 proved the medical report of the victim (Ext. Ka-10). This witness also proved pathology report, exhibited as Ext. Ka-11. This witness (PW-5) stated in his cross-examination that according to his opinion, the victim was subjected to sexual assault.

PW-5 also proved slides sent to the EMO, Jawahar Lal Nehru District Hosptial, Rudrapur by appellant Rajendra Gupta, S/o Chotelal Gupta and after investigation, on both the slides few spermatozoa were found. This witness proved the aforesaid pathological report (Ext. Ka-11).

16. In order to prove the age of the victim, PW-7- Rajesh Kumar Yadav was examined, who was the Assistant Teacher of his school, who filed and proved the copy of the admission register (Ext. Ka-12), in which the date of birth of the victim was recorded as 08.04.2001 and according to his evidence, on the date of incident the victim was minor.

17. The appellant also examined Shri Satnaam Singh as DW-1, who proved the fact that there was some dispute between the father of the victim and the appellant, but no case was lodged by the appellant. From the evidence available on record, it has been amply proved by the prosecution that the appellant made sexual assault upon the victim and sodomised him, who was barely 14 years of age at the time of the said incident. The contradiction and development as alleged by the learned Amicus Curiae were not found there on appreciation of the evidence rather it is noticed that the evidence of the prosecution is unimpeachable and trustworthy upon the material particulars.

18. The victim who is a minor child could not be discredited by the defence and he remained very very consistent in his version. There is nothing on record to even remotely suggest any doubt about the case of the prosecution. Thus, in our opinion, there is no infirmity in

the judgment and order passed by the learned trial court and accordingly, the appellant was rightly convicted and sentenced for the offence proved against him.

19. The appeal is accordingly dismissed. The judgment and order 20/21.12.2018, passed by learned FTC/Additional Sessions/Special Judge POCSO, Udham Singh Nagar in Special Sessions Trial No. 199 of 2016, State Vs. Rajendra Gupta, by which the appellant is convicted and sentenced, is hereby affirmed.

20. The appellant is in jail. He shall serve out the sentence, so awarded. Registry to send a copy of this judgment along with the LCR to the court concerned for information and compliance.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) 24.08.2023

PN