Satranjan vs State Of Uttarakhand on 10 October, 2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No. 11/2015

Satranjan …. Appellant

Versus

State of Uttarakhand …. Respondent

Mr. Shakti Singh, Amicus Curiae, for the appellant.
Mr. Pratiroop Pandey, A.G.A., for the State.

October 10, 2017

Hon’ble Servesh Kumar Gupta, J.

By means of this jail appeal, the judgment and
order dated 30.3.2015/1.4.2015 rendered by the Sessions
Judge, Haridwar has been put to challenge.

The chargesheet was submitted against the
appellant Satranjan for the offences under Sections
376/511, 363, 506 IPC nay Section 7/8 of the Protection of
Children from Sexual Offences Act, 2014 (hereinafter called
as the ‘POCSO Act’). The charges were levelled accordingly
on 16.4.2014 and the accused has been found guilty for all
such offences so charged.

Appellant has been sentenced to five years
rigorous imprisonment and fine of rupees five thousand for
the offence under Section 363 IPC, in default of payment,
he has been asked to further undergo one month’s
imprisonment; for the offence of Section 376/511, he has
been sentenced to five years rigorous imprisonment and
fine of rupees twenty five thousand, in default of fine, he
has been directed to further undergo five months’
imprisonment; for the offence of Section 506, appellant has
been sentenced to two years rigorous imprisonment and
fine of rupees five thousand, in default of fine, he has been
asked to further undergo one month’s imprisonment; and
for the offence under Section 7/8 of the POCSO Act, the
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convict has been sentenced to five years imprisonment and
fine of rupees twenty five thousand, in default of payment
of fine, he has been directed to further undergo five
months’ imprisonment. Learned Judge has also directed
that if the find is paid, then out of the same, rupees thirty
thousand shall be paid to the victim Km. Anchal Rawat.

The incident occurred on 28.1.2014 between
7.30 to 8.00 AM, when Km. Anchal Rawat on her bicycle
left her house and was on way to her school. Soon after
coming out of her house, Km. Anchal Rawat was forcibly
abducted by gagging her mouth by the accused Satranjan,
who was identifiable to the victim because he used to come
to work as a cook in the neighbouring house. Km. Anchal
Rawat was taken by the accused to his nearly place of
dwelling wherein after bolting the room from inside, he
allegedly committed sexual assault and intimidated Km.
Anchal Rawat not to disclose the incident by showing the
knife to her and in violation of his directions, she was told
that all her family members will be killed by him.

Somehow, Km. Anchal Rawat managed after
some time to come out from the room of the accused. She
picked up her bicycle from the spot and came to her house.
She disclosed the entire incident to her mother, who rang
up to Mr. Vikram Singh Rawat (father of the victim). Mr.
Rawat came to his house and informed the police
telephonically by ringing 100 number at around 4-5 PM. He
himself went to the police station at 6 PM along with the
victim and lodged the FIR Ex. Ka-1. Chick report thereof is
also available on the record which adverts that the FIR was
lodged at 6.10 PM for the offences under Sections 376/511,
363, 506 IPC.

The girl was taken for the medical examination
in the Government Hospital at around 7 PM on the same
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day. She was examined by the lady doctor Smt. Alpna
Khare, who found the following injuries:

(i) redness and cut, which was no bleeding and
involving whole upper lip as well as two-third lower lip.

(ii) breast and axillary hairs well developed; labia
majora well developed.

(iii) No sign of any injury over the private part;
hymen was intact. However, the discharge from the vagina
was present over pantee (underwear) of the girl, which was
sealed and handed over to the police.

The above medical report is Ex. Ka-3 and the
same has been proved by PW4 Dr. Alpna Khare.

Additional supplementary report Ex. Ka-4 was
also prepared wherein it was disclosed that no
spermatozoa, either dead or alive, was seen in microscopic
examination of both smear slides. Hence, no definite
opinion can be given about the rape. The cut on the upper
and lower lip could have been 12 hours old duration. So,
this way so far as the injury on the upper and lower lip is
concerned, it matches with the time of incident.

On the next day 29.1.2014, the girl was taken
for 164 CrPC statement recorded by the Judicial
Magistrate, Haridwar. The victim has stated before the
Magistrate that when she was going to her school on her
bicycle, the accused came from behind, who was
identifiable by his face because he used to come to work as
a cook in the neighbouring house. He gagged her mouth
and forcibly took her to the place of his abode where he
started to outrage her modesty against her will and without
her consent. Her upper and lower lips were bitten.
Although she attempted to inform her father by the phone,
which was lying in his room, but such attempt could not
succeed. She was threatened not to disclose the incident,
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otherwise whole family will be killed and at the time when
her school is usually over, she was left at the road. Then
she could reach to her house and disclosed the entire
incident to her mother.

This 164 CrPC statement though is not a
substantive piece of evidence, but the same has been
proved by Km. Anchal Rawat during the course of her
deposition as PW2.

PW1, father of the victim, has proved the lodging
of the FIR.

PW2 Km. Anchal Rawat in her deposition has
stated her date of birth as 2.7.2002. So, she was at the
most nearly 12 years of age. In her chief examination, she
has stated that when she was still inside in the room of the
accused, she got an opportunity to escape from his
clutches when the accused joined other part of the room to
wash his hands and to quench his thirst. So, she picked up
her bicycle and came to the house. So, the deposition of
this witness is contrary to what she has disclosed in her
164 CrPC statement because in such statement before the
Magistrate, she had disclosed that at the usual time when
her school gets over, she was left by the accused at the
road and then she came to her house.

If the statement under Section 164 CrPC is
believed for a moment, then the question arises that the
victim would have been remained confined in the clutches
of the accused at least for around six hours. Had it been
so, then it was not possible that a youth of 21 years would
have left Km. Anchal Rawat keeping her confined
continuously for 5-6 hours in his clutches and more so,
none was present on the ground floor or the first floor of
the house, as has been deposed by Km. Anchal Rawat.
However, the fact remains that so far as charge that she
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was abducted forcibly and taken by the accused to his
room where she remained confined for quite some time is
concerned, I think the same is proved. The biting on upper
and lower lips and touching of her private parts by his
finger also stood proved in both the statements of Km.
Anchal Rawat, which she made before the Magistrate under
Section 164 CrPC as well as during the course of her
deposition before the learned Sessions Judge.

The principle of falsus in uno, falsus in omnibus
has not been accepted for the last few decades in the
criminal judicial system. As regards the attempt to rape is
concerned, I do not agree with the view expressed by the
learned Sessions Judge because to analyse on this aspect,
it is necessary to look the definition of rape, as has been
contemplated under Section 375 of the Indian Penal Code.
Either of the provisions of Section 375 cannot lead to the
Court that any attempt of rape was even made by the
accused. But at the same time, I feel that the nature of the
act of the accused is covered under Section 354 IPC,
wherefor the maximum sentence is five years and the
minimum sentence is one year and fine. So, it will be in the
fitness of things to opine that the accused is not guilty for
the offence of Section 376/511 IPC, but only for the offence
of Section 354 IPC.

PW3 Smt. Kavita Rawat, the mother of victim,
has disclosed all that was revealed to her by her daughter,
but she is not an eyewitness.

PW4 is Dr. Alpna Khare, whose testimony has
already been cited by this Court. PW5 is Head Constable
Karm Singh Chauhan, who has recorded the FIR in the
general diary and issued the Chick. PW6 is the Principal of
the school where the victim was pursuing her education in
Class IX and she has proved the date of birth of the victim
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as 2.7.2002, according to the school record. PW7 is Sub
Inspector Janki Bhandari, who has submitted the
chargesheet in the Court and has proved the same.

For the facts highlighted above, I find that the
offences under Section 363 IPC and Section 7/8 of the
POCSO Act are also proved. I also opine that the accused
has also intimidated and threatened the victim not to
disclose the incident. Therefore, offence of Section 506 is
also proved. However, contemplating upon the nature of
the offence, the age of the victim as well as of the accused, I
feel that the punishment is somewhat excessive, which has
been awarded by the learned Sessions Judge to the
maximum and it ought not to have been so. Therefore,
converting the guilt from Section 376/511 to Section 354
IPC and also holding the appellant guilty for the offences
under Section 363, 506 IPC and Section 7/8 of the POCSO
Act, I modify the sentence as below.

For the offence under Section 363 IPC, appellant
is sentenced to two years rigorous imprisonment and fine
of rupees two thousand, in default of fine, he will further
undergo two months’ imprisonment; for the converted
offence of Section 354 IPC, appellant is sentenced to one
year’s rigorous imprisonment and fine of rupees one
thousand, in default of fine, he is directed to undergo
further one month’s simple imprisonment; for the offence
under Section 506, appellant is sentenced to one year’s
rigorous imprisonment only; and for the offence of Section
7/8 POCSO Act, appellant convict is sentenced with three
years’ rigorous imprisonment and fine of rupees five
thousand, in default whereof he will further undergo five
months’ imprisonment. All the sentences shall run
concurrently.

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It has been on the record that the appellant was
arrested by the police on 28.1.2014 and since then he is
under incarceration. So, after making the calculations as
per the modified sentence indicated above, the jail
authority concerned shall accordingly release the appellant
from the gaol.

Appeal is partly allowed. Conviction and
sentences are modified to the extent indicated above.

Let a copy of this judgment and order, along with
LCR, be sent to the trial court to ensure its compliance.

(Servesh Kumar Gupta, J.)
Prabodh

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