Rakesh vs State Of Uttarakhand on 12 January, 2018

Reserved On: 12.12.2017
Delivered On: 12.01.2018

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No.45 of 2013

Rakesh
……..Appellant (in Jail)

Versus

State of Uttarakhand

………Respondent
Mrs. Vijay Lakshmi, Advocate (Amicus Curiae) for the appellant
Mr. P.S. Bohara, A.G.A. with Mr. Balvinder Singh, Brief Holder for the State

Hon’ble Lok Pal Singh, J.

This appeal has been preferred against the
judgment and order dated 04.09.2013 passed by 3rd
Additional Sessions Judge, Haridwar in S.T. No.232 of
2013, whereby the accused/appellant has been convicted
under Sections 363, 366A and 376(2)(n) of the Indian
Penal Code, 1860 (for short,
IPC). He has been sentenced
to rigorous imprisonment for a period of five years along
with fine of Rs.1,000/- u/s 363; five years’ R.I. along with
fine of Rs.1,000/- u/s 366A and ten years’ R.I. along with
fine of Rs.2,000/- u/s 376(2)(n). All the sentenced were
directed to run concurrently.

2. Prosecution story, in brief, is that on
18.10.2012 the complainant/father of the prosecutrix
submitted a missing report of his daughter, aged 16 years,
at P.S. Kotwali Manglaur, District Haridwar.
On the basis of missing report, Chik F.I.R. was prepared
and case crime no.23 of 2012 was registered. Initially,
investigation of the case was handed over to P.W.6 S.I.
Pradeep Tomar, which subsequently was transferred to
P.W.7 S.I. Kailash Singh. On 30.5.2013, the Investigating
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Officer arrested the accused/appellant Rakesh and also
recovered the prosecutrix from his possession, arrest
memo was prepared on the spot. Thereafter the I.O. got
recorded the statement of prosecutrix as well as the
accused. Statement of the prosecutrix was also got
recorded u/s 164 of
Cr.P.C. He also got conducted medical
examination of the prosecutrix. The I.O. after completing
the investigation, submitted charge sheet against the
accused/appellant Rakesh, for his trial, in respect of
offences punishable under
Sections 363, 366A and 376
IPC.

3. On receipt of charge sheet, Addl. Civil Judge
(S.D.)/Judicial Magistrate Roorkee, committed the case to
the court of Sessions, after giving necessary copies to the
accused, as provided under
Section 207 of Cr.P.C. On
21.08.2013, 3rd Addl. Sessions Judge, Haridwar, framed
charge of offence punishable under
sections 363, 366A
and
376 of IPC against the accused/appellant, to which he
pleaded not guilty and claimed to be tried.

4. After denial of offence, the trial was begun. In
order to prove its case, the prosecution got examined PW1
the complainant, PW2 mother of the prosecutrix, PW3 Dr.
Kamal Hal (who conducted medical examination of the
prosecutrix), PW4 the prosecutrix, PW5 Constable
Harbhajan Singh (Head Mohirror), PW6 Sub Inspector
Pradeep Tomar (Investigating Officer), PW7 S.I. Kailash
Singh (Investigation Officer) and PW8 Dr. Savita Vats
(formal witness).

5. Thereafter, oral and documentary evidence was
put to the accused under
section 313 Cr.P.C, in reply to
which he pleaded that he has falsely been implicated in
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the case. However, in defence, he neither adduced any oral
evidence nor filed any documentary evidence.

6. The trial court, after hearing the parties and
upon perusal of evidence led by the parties, passed the
impugned judgment and order dated 04.09.2013
convicting and sentencing the accused/appellant, as
above.

7. Before any further discussion, it would be
relevant to mention here that after seven months of
lodging of F.I.R. i.e. on 30.05.2013 the prosecutrix was
medically examined by PW3 Dr. Kamal Lal. Medical report
(Ext.A3) prepared by the doctor is reproduced as under:-

“No injuries including private parts seen
Per vaginal – hymen ruptured p/v admits
two finger easily. Slight bleeding per vagina
seen.

Vaginal smear taken and sent for
pathological examination of any spermatozoa –
dead or alive.”

8. Thereafter, on 07.06.2013, supplementary
report was prepared by the medical officer, which is
reproduced as under:

“- No spermatozoa seen in both slides dead or
alive.”

9. PW3 Dr. Kaml Hal has proved the report Ext.A2
and Ext.A4. She has also stated that sexual intercourse
was done with the prosecutrix.

10. PW1 the complainant has stated that on the
date of incident his daughter was aged 16 years. On
10.10.2012 she went to ease herself and thereafter did not
come back. He tried his best to search her but to no avail.

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He also stated that Roshi and Pawan who are residents of
Village Lathardeva had told him that the accused had
taken his daughter forcibly.

11. PW2 is the mother of the prosecutrix. She has
deposed that the accused had taken his daughter forcibly.
She also stated that police had recovered her daughter
along with the accused from Kotdwar. She also stated that
on the date of incident, her daughter was aged 16 years.

12. PW4 prosecutrix has stated that on 10.10.2012
she was sleeping in the courtyard. In night, she went to
ease out herself. She saw that the accused and Roshi were
standing outside her house. They put a cloth on her
mouth and she became unconscious. She also stated that
the accused took her to Kotdwar where the accused had
taken a room on rent. She further stated that the accused
committed rape with her and had threatened her to kill
her, if she would disclose this incident to anybody. She
stated that her date of birth is 07.02.1996. She also stated
that the accused used to commit rape with her regularly
and on her resistance he used to give beatings to her.

13. PW5 Constable Harbhajan Singh is a formal
witness. He has proved the Chik F.I.R. Ext.A5 and G.D.
entry Ext.A6.

14. PW6 Sub Inspector Pradeep Tomar has stated
that on 18.10.2012 he was posted in P.S. Manglore. He
was entrusted with the investigation of the case. During
the course of investigation, he recorded the statement of
witnesses. On the basis of allegation levelled by the
complainant against the accused, criminal case was
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registered against the accused u/s 363, 366A and 376
IPC.

15. PW7 Sub Inspector Kailash Singh has stated
that on 16.03.2013 he was entrusted with the
investigation of the case. During the course of
investigation, he also recorded the statements of
witnesses. On 30.05.2013, after receiving information from
the informant, he arrested the accused and recovered the
prosecutrix. On the same day, he recorded the statements
of accused and the prosecutrix and also got recorded the
statement of prosecutrix before the Magistrate u/s 164 of
Cr.P.C. On 6.6.2013, he got conducted medical
examination of the prosecutrix. He stated that on the
relevant date and time, the prosecutrix was minor.

16. PW8 Dr. Savita Vats has stated that she was the
officiating Principal of Kanya Pathshala Inter College,
Manglaur w.e.f 1.4.2012. The prosecutrix had taken
admission in Class VI and had studied upto Class X. She
stated that as per her school’s record, date of birth of the
prosecutrix is 7.2.1996, which is mentioned in the school
transfer certificate.

17. Mrs. Vijay Laxmi, learned Amicus Curiae
submitted that on going through the entire evidence
brought on record, it emerges out that the prosecutrix was
the consenting party. As such, the trial Court has wrongly
held the accused guilty and has wrongly convicted the
appellant.

18. Per Contra, learned A.G.A. submitted that the
prosecutrix was minor on the date of occurrence as such
question of consent does not arise. He has referred a
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judgment of Hon’ble Apex Court rendered in the case of
Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263.
Para-22 of the judgment is relevant, which is extracted
hereunder:

“22. On the issue of determination of age of a minor,
one only needs to make a reference to Rule 12 of the
Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as “the 2007
Rules”). The aforestated 2007 Rules have been
framed under
Section 68(1) of the Juvenile Justice
(Care and
Protection of Children) Act, 2000. Rule 12
referred to hereinabove reads as under :

“12. Procedure to be followed in
determination of Age. (1) In every case concerning
a child or a juvenile in conflict with law, the court or
the Board or as the case may be the Committee
referred to in rule 19 of these rules shall determine
the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from
the date of making of the application for that
purpose.

(2) The court or the Board or as the case may
be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the case
may be the juvenile in conflict with law, prima facie
on the basis of physical appearance or documents, if
available, and send him to the observation home or
in jail.

(3) In every case concerning a child or juvenile
in conflict with law, the age determination inquiry
shall be conducted by the court or the Board or, as
the case may be, the Committee by seeking evidence
by obtaining –

(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in
the absence whereof;

(iii) the birth certificate given by a corporation or
a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or

(iii) of clause (a) above, the medical opinion will
be sought from a duly constituted Medical
Board, which will declare the age of the
juvenile or child. In case exact assessment of
the age cannot be done, the Court or the Board
or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if
considered necessary, give benefit to the child
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or juvenile by considering his/her age on lower
side within the margin of one year.

and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may
be, record a finding in respect of his age and either of
the evidence specified in any of the clauses (a)(i), (ii),

(iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or
the juvenile in conflict with law.

(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be below 18
years on the date of offence, on the basis of any of
the conclusive proof specified in sub-rule (3), the
court or the Board or as the case may be the
Committee shall in writing pass an order stating the
age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these rules
and a copy of the order shall be given to such
juvenile or the person concerned.

(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of
section
7A,
section 64 of the Act and these rules, no further
inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any
other documentary proof referred to in sub-rule (3) of
this rule.

(6) The provisions contained in this rule shall
also apply to those disposed off cases, where the
status of juvenility has not been determined in
accordance with the provisions contained in sub-
rule(3) and the Act, requiring dispensation of the
sentence under the Act for passing appropriate order
in the interest of the juvenile in conflict with law.”

19. It is settled law that even if consent has been
obtained by the accused for sexual intercourse, it will
amount to rape, if the victim was incapable of giving a
valid consent, as per
Section 375 of the I.P.C. Thus, the
first thing which is to be borne in mind is that it has to be
seen whether the prosecutrix was minor on the relevant
date and time.

20. From a perusal of the aforesaid Rules, so
framed, and as followed by the Hon’ble Apex court in the
judgment (supra), what would be relevant to determine the
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age of a child is: a) the matriculation or equivalent
certificate, if available, and in absence whereof; (ii) the
date of birth certificate from the school (other than a play
school) first attended; and in the absence whereof; (iii) the
birth certificate given by a corporation or a municipal
authority or a panchayat (b) and only in the absence of
either (i), (ii) or (iii) of clause (a) above, the medical opinion
will be sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.

21. The Court finds that in the present case, the
prosecutrix has studied upto Class V at Primary School
Asafnagar, District Haridwar. In order to prove the age of
the prosecutrix, school leaving certificate of the
prosecutrix from the school first attended and high school
marksheet were filed by the prosecution. In the certificate
and marksheet, date of birth of the prosecutrix is
mentioned as 07.02.1996. Thus, it is established on record
that on the date of incident the prosecutrix was about 16
years. As such, consent is immaterial.

22. For the reasons as discussed above, the appeal
lacks merit and is hereby dismissed. Impugned judgment
and order dated 04.09.2013 passed by 3rd Additional
Sessions Judge, Haridwar in S.T. No.232 of 2013, is
hereby affirmed.

23. Lower court record be sent back.

(Lok Pal Singh, J.)
12.01.2018
Rajni

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