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Dal Chandra vs State Of Uttarakhand on 1 June, 2018

Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No.29 of 2015

Dal Chandra ……. Appellant
Versus

State of Uttarakhand …… Respondent
Ms. Manisha Bhandari with Mr. Shiv Pande, Advocates, for the appellant.
Mr. Amit Bhatt, Dy. Advocate General, for the State.

Dated: June 01, 2018

Coram: Hon’ble Rajiv Sharma, J.

Hon’ble Alok Singh, J.

Per: Hon’ble Rajiv Sharma, J.

This appeal is instituted against the judgment
and order dated 09.09.2015 rendered by Special Judge
(POCSO)/FTC/Additional Sessions Judge, Haldwani
(Nainital) in Sessions Trial No.29/2015, whereby the
appellant Dal Chandra was charged with and tried for the
offence under Section 376(2)(i) I.P.C. and Section 5(m)
r/w
Section 6 of the Protection of Children from Sexual
Offences Act (hereinafter to be referred to as ‘the Act’). At
the end of trial, the Trial Court convicted the appellant
under
Section 376(2)(i) of the Indian Penal Code (for short
‘the
I.P.C’) and sentenced him to undergo fifteen years’
rigorous imprisonment with fine of Rs.10,000/- and in
default of payment of fine, to undergo additional rigorous
imprisonment for a period of two months.

2. Case of the prosecution in a nutshell is that
PW1, grandmother of prosecutrix (name withheld) lodged
the report on 24.1.2015 to the effect that the appellant
2

was known to her. He came to her house on that day at
5:30 PM. Appellant took away her granddaughter
(prosecutrix), aged about one year and three months, on
the pretext of providing her biscuits. After some time,
the appellant brought back the prosecutrix. When PW1
changed the clothes of prosecutrix, she found that the
blood was oozing out from her private parts and she was
crying. She took the prosecutrix to the hospital.
Thereafter, the first information report was lodged.

3. The matter was investigated and Challan was
put up before the Court after completing all the codal
formalities.

4. Prosecution has examined as many as seven
witnesses in support of its case.

5. Appellant was also examined u/s 313 Cr.P.C.
He denied the case of prosecution. According to him, he
was falsely implicated.

6. Appellant was convicted and sentenced by the
Trial Court, as noticed hereinabove. Hence this appeal.

7. Learned Counsel, appearing on behalf of the
appellant, has vehemently argued that the prosecution
has failed to prove its case against the appellant beyond
reasonable doubt.

8. Learned Dy. Advocate General, appearing for
the State, has supported the judgment dated 9.9.2015.

9. We have heard learned counsel for the parties
and gone through the impugned judgment and lower
court record very carefully.

3

10. PW1 is the grandmother of prosecutrix. She
deposed that on 24.1.2015, she along with her daughter
(PW2) had gone to bring the fuel wood from the jungle.
They came back at 5-5:30 PM. At that time, the
appellant was sitting in the house. He was drunk. Her
granddaughter was playing in the house. Appellant took
away the prosecutrix on the pretext of providing her
biscuits. Appellant returned to house after a long time.
She enquired the appellant why he was so late but he did
not reply. The prosecutrix was crying. Her daughter
noticed that blood was oozing out from the private parts
of prosecutrix. The first information report was
thereafter lodged. She was acquainted with the appellant
since he was her tenant. She proved the first information
report. In her cross-examination, she deposed that the
appellant was her tenant. He was a rickshaw puller. He
was paying Rs.30/- per day to her. Appellant used to
deposit the money with her and take the same away
when he was going to his home. Clothes of victim were
given to the SHO. She proved her statement recorded
u/s 164
Cr.P.C.

11. PW2 is the mother of prosecutrix. She testified
that she was living with her mother (PW1). Her daughter
was one year and three months’ old. They had gone to
jungle to fetch the fuel wood. They came back at 5 PM.
Appellant was sitting in the house. He was drunk.
Appellant took away her daughter. He came back after
one hour. The prosecutrix was crying. Her trouser was
wet. Blood was oozing out from her private parts.
Appellant tried to run away, however, he was
apprehended by her mother. The clothes of prosecutrix
4

were taken into possession. In her cross-examination,
she denied the suggestion that the appellant had entered
into any altercation with her mother. The appellant was
her tenant.

12. PW3 Head Constable Bhagwan Giri Goswami
has registered the first information report.

13. PW4 Dr. Manju Rawat has medically examined
the prosecutrix. She has noticed the following injuries on
the body of prosecutrix: –

“1. Injury- Perennial tear at midline measuring 1x
0.5 cm extending to posterior wall of vagina. Fresh
bleeding present.

2. Slight oedema present around perineum.

3. Labia Majora- Slight Oedema present

4. Labia Manora- Slight Oedema present

5. Fourchette Introitus- Tear present 1 x 0.5 cm

6. Hymen Perineum- Midline fresh bleeding
present”

14. According to her, no spermatozoa was seen in
pathology report. No definite opinion could be given
about the act of sexual assault. She further opined that
on examination of findings and the medical history, the
sexual assault could not be ruled out. She has proved
the medical report. In her cross-examination, she has
testified that she noticed blood on the clothes of
prosecutrix. She has not conclusively ruled out the
possibility of victim being sexually assaulted.

5

15. PW5 S.I. Devendra Singh Bisht has taken the
clothes of victim into possession.

16. PW6 S.I. Suman Pant is the Investigating
Officer. She has proved the arrest of appellant. She
prepared the spot map and recorded the statements of
witnesses.

17. PW7 Dr. Dilip Varshney has medically
examined the appellant. He has noticed two abrasions
on his hips measuring 1 x 1 cm. These abrasions were
red in colour. These abrasions were fresh in nature and
could be caused by a hard rough object.

18. From the evidence, discussed hereinabove, it is
evident that the statement of PW1 is dully corroborated
by PW2. They have categorically deposed that on
24.1.2015, appellant has allured the prosecutrix to
provide her biscuits. He came back after about one hour.
PW1 and PW2 noticed fresh blood oozing out from the
private parts of prosecutrix.

19. There is no merit in the contention of learned
Counsel for the appellant that there was animosity
between the parties. Rather the appellant was the tenant
of PW1.

20. The submission made by learned Counsel for
the appellant that there was some dispute with regard to
the payment of money also cannot be accepted. The first
information report too was promptly lodged.

21. The prosecutrix was medically examined by
PW4 Dr. Manju Rawat. She has noticed injuries on the
private parts of prosecutrix. According to her, there was
6

perineal tear at midline measuring 1 x 0.5 cm extending
to posterior wall of vagina. There was slight oedema
present around perineum. There was slight oedema
present in the labia major and labia minora also. Tear
was present measuring 1 x 0.5 cm on the fourchette and
introitus. The doctor also noticed bleeding on hymen
perineum of prosecutrix. According to her, the possibility
of sexual assault could not be ruled out.

22. PW7 Dr. Dalip Varshney, who examined the
appellant, has noticed two abrasions on the hips of
appellant. These injuries have not been explained by the
appellant.

23. According to the Forensic Science Laboratory
(FSL) report, human semen was detected on Exhibits 4
and 7. Human blood was found in Exhibits 1, 2, 3, 5, 6,
9, 10 and 11. However, the blood could not be detected
on Exhibits 4, 7 and 12.

24. Their Lordships of Hon’ble Supreme Court in
(2007) 10 SCC 30 in the case of ‘Dimple Gupta (minor) v.
Rajiv Gupta’ have held that illiterate witness do not have
sense of time and so cannot be expected to lay down with
precision the chain of events. Their Lordships have held
as under: –

“8. We have also perused the judgments of the trial Magistrate
and the High Court. We find no reasons to justify a reversal of the
findings that had been recorded by the trial Magistrate as the
application was supported by the Statement of PW1 Narain Dassi
and several other witnesses. PW3 Chandra Devi specifically
deposed that Narain Dassi and respondent Rajiv Gupta had stayed
in her house in village Kalpa several years earlier. The High Court
has held that statement of PW3 could not be relied upon as it
appeared that she had been in Sri Lanka at the relevant time and
could not have therefore been host to Narain Dassi and Rajiv Gupta
in Kalpa. We are of the opinion that in such matters it is impossible
to lay down with precision the chain of events more particularly
when illiterate villagers with no sense of time are involved. We find
7

no reason therefore to hold as to why the statement of PW3 should
not be believed. Likewisem we find that PW4 Bhag Rath Pradhan of
village Kalpa had proved the extracts of the birth register Ex.PW-
4/A which shows the father’s name of Dimple Gupta as Rajiv
Kumar whereas PW5 Devender Singh, a teacher has proved the
admission form of Dimple Gupta where the column pertaining to the
father’s name has been left blank as would perhaps be expected
from an unwed mother as it would be best to keep silent on the
subject to avoid embarrassment to all concerned particularly at the
time when the child was being admitted to school.”

25. In (2010) 2 SCC 9 in ‘Wahid Khan v State of
M.P.’, their Lordships of Hon’ble Supreme Court have
held that even slightest penetration is sufficient to make
out offence of rape and depth of penetration is
immaterial. Their Lordships have held as under: –

“It was also contended by learned counsel for the appellant that
since hymen of the prosecutrix was found to be in tact, therefore, it
cannot be said that an offence of rape was committed on her by the
appellant. This contention cannot be accepted as offence of rape
has been defined in
Section 375 of the IPC. Explanation to Section
375 reads thus :

“Explanation- Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.”

It has been a consistent view of this Court that even a slightest
penetration is sufficient to make out an offence of rape and depth of
penetration is immaterial.”

26. In (2014) 2 SCC 592 in the case of ‘Parminder
@ Ladka Pola v. State of Delhi’ their Lordships of Hon’ble
Apex Court have held that even though the doctor stated
there was no sign of injury on prosecutrix and hymen
was found intact but the version of prosecutrix, of rape,
was adequately corroborated. In that case also, the
human semen and blood was detected on the underwear
of prosecutrix but no semen was detected in the vaginal
swab. Their Lordships held that non-rupture of hymen is
not sufficient to dislodge the theory of rape and the
conviction of rape was confirmed. Further held that
there was penetration which has caused bleeding in
private parts of prosecutrix, as would be evident from the
8

fact that underewear of prosecutrix was stained by blood.
Their Lordships have held as under: –

“11. Section 375, IPC, defines the offence of ‘rape’ and the
Explanation to
Section 375, IPC, states that penetration is sufficient
to constitute the sexual intercourse necessary to the offence of rape.
This Court has accordingly held in
Wahid Khan v. State of Madhya
Pradesh [(2010) 2 SCC 9] that even the slightest penetration is
sufficient to make out an offence of rape and depth of penetration is
immaterial. In the aforesaid case, this Court has relied on the very
same passage from Modi in Medical Jurisprudence and Toxicology
(Twenty Second Edition) quoted above. In the present case, even
though the hymen of the prosecutrix was not ruptured the High
Court has held that there was penetration which has caused
bleeding in the private parts of the prosecutrix as would be evident
from the fact that the underwear of the prosecutrix was stained by
blood. In our considered opinion, the High Court was right in
holding the appellant guilty of the offence of rape and there is no
merit in the contention of the learned counsel for the appellant that
there was only an attempt to rape and not rape by the appellant.”

27. For the reasons, recorded hereinabove, we find
no merit in this jail appeal and thus, we dismiss the
same by affirming the judgment and order, under
challenge. Appellant is already in jail. He shall serve out
the sentence, so awarded to him by the Trial Court.

28. Let a copy of this judgment and order along
with the LCR be transmitted to the Court with the
direction to inform the appellant-Dal Chandra about the
fate of his appeal.

(Alok Singh, J.) (Rajiv Sharma, J.)
Rdang

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