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Anil vs State Of Uttarakhand on 7 December, 2017

Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No. 08 of 2017

Reserved on: 5th December, 2017
Decided on: 7th December, 2017
—————————————————————————
Anil ….Appellant
Versus

State of Uttarakhand …. Respondent
—————————————————————————

Mr. Sachin Mohan Singh Mehta, Advocate for the appellant.
Mr. Amit Bhatt, Deputy Advocate General with Mr. P.S. Bohara and Mr.
K.S. Rawat, Brief Holders for the State.

Hon’ble Rajiv Sharma, J.

Hon’ble Alok Singh, J.

Per: Hon’ble Rajiv Sharma, J.

Present appeal is instituted against the
judgment and order dated 30.01.2017 rendered by the
Fast Track Court/Special Judge (POCSO)/Additional
District Judge, Dehradun, in Special Sessions Trial
No. 65 of 2015, whereby the accused/appellant, who
was charged with and tried for the offences under
Sections 376, 323 and 506 I.P.C. and under Section
5/6 of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter to be referred as ‘the POCSO
Act’). He was convicted under Section 376 and 323 of
I.P.C. and Section 5/6 of POCSO Act and sentenced to
undergo life imprisonment under Section 5/6 of
POCSO Act, to pay a fine of Rs.30,000/-, and in
default of payment of fine, to undergo simple
imprisonment for a period of one month under Section
6 of the POCSO Act. He was sentenced to undergo one
year simple imprisonment and to pay fine of Rs. 500/-
and in default of payment of fine to under 15 days
additional simple imprisonment under Section 323 of
I.P.C.

2

2. The case of the prosecution, in a nutshell, is
that on 05.07.2015, PW-2 Reeta (mother of the
prosecutrix) has lodged a report to the effect that on
03.07.2015, her daughter had gone to attend the
School at Barotiwala. One person met her, who was
known to her family. Her daughter was aged 9 years.
She was allured by that person and he took her to the
sweet shop. He used to work in the sweet shop.
Thereafter, he took her daughter to a garden. She was
forced to consume liquor. He sexually assaulted her
daughter. Her daughter was in bad shape when she
came back to the house. She narrated the incident to
her and named the appellant. The prosecutrix was
taken for medical examination. An F.I.R. was
registered against the appellant/accused. After
investigation, challan was put up after completing all
the codal formalities.

3. The prosecution has examined as many as
10 witnesses in support of his case. The accused was
also examined under Section 313 of Cr.P.C. He denied
the case of the prosecution. The appellant was
convicted as noticed hereinabove. Hence this appeal.

4. Mr. Sachin Mohan Singh Mehta, learned
counsel appearing for the appellant, has vehemently
argued that the prosecution has failed to prove its case
against the accused.

5. Mr. Amit Bhatt, learned Deputy Advocate
General appearing for the State has supported the
judgment dated 30.01.2017.

6. We have heard learned counsel for the
parties and gone through the impugned judgment and
record carefully.

7. PW1 is the prosecutrix (name withheld). The
Court after observing the intelligence of the
prosecutrix recorded her statement. The trial judge
3

should not have mentioned her name in the statement.
PW1 testified that she knew the appellant. He used to
come to their house. In the morning, when she was
going to the school at Barotiwala, the appellant met
her. He took her to the sweet shop. He used to work in
the sweet shop. Thereafter, he took her to the jungle.
She was forced to consume liquor. He sexually
assaulted her. He removed her Salwar. He removed his
trouser. He touched his private part with her private
part. She felt pain. She cried. Thereafter, he left her at
her house. She came back to her house. The door was
locked. She narrated the incident to her aunt Sarita
Devi. She put some ointment on her private part.
Thereafter, her mother, uncle and aunt took her to the
hospital for medical examination. In her cross
examination, she told that she was studying in
primary school. The accused was known to them.

8. PW2 Smt. Reeta is mother of the
prosecutrix. She deposed that last year she had gone
for plantation. Her daughter was ready to go to the
school. When she came back, her sister in law told her
that the appellant had sexually exploited her daughter
by intoxicating her. The prosecutrix has also narrated
the incident to her. She noticed blood stains on her
Salwar. They went to the Police Station.

9. PW3 Smt. Sarita Devi has corroborated the
statements of PW1 and PW2. She deposed that on
03.07.2015, her sister in law had gone for plantation.
She noticed her niece in front of her door. She was
picked up. She was unwell. She noticed blood stains
on her Salwar. The prosecutrix told her that the
appellant has sexually exploited her. The prosectrix
was taken to the hospital.

10. PW4 Hoshiyar Singh (father of the
prosecutrix) deposed that the appellant was known to
4

their family. When he came back to his house, his
daughter was smelling of liquor. She told him that she
was forced to consume liquor by the appellant. The
blood stains were noticed on her clothes. The
prosecutrix was taken for medical examination.

11. PW5 Shravan Singh told that on
03.07.2015, when he came back, her wife Sarita told
her that something bad has happened with her niece.
He identified the accused in the Court. They have
taken the prosecutrix to the Hospital.

12. PW6 Dr. Shikha Thakur has medically
examined the prosecutrix. According to her
observation, she was crying. She was not normal. She
was feeling pain near her stomach. She noticed many
abrasions on her back and on her left thigh. There was
vaginal puss coming out of her private part. She was
feeling acute pain when her thighs were examined. She
sent the slides for pathological examination. According
to her, no spermatozoa was found. In her cross
examination, she deposed that prosecutrix was not
able to separate her legs due to injuries. According to
her, no blood was oozing out of the private parts of the
prosecutrix but puss was coming out.

13. PW8 Sub Inspector, Jyoti Chauhan Negi
was the Investigating Officer in the matter. She
recorded the statement of the prosecutrix under
Section 164 Cr.P.C.

14. PW9 Sub Inspector, Pratibha has also
investigated the matter.

15. PW10 Smt. Sarla has proved the date of
birth of the prosecutrix. Her date of birth was
30.12.2006.

16. According to the F.S.L report the semen was
not detected on Exhibits-1, 2 and 3. Human blood was
5

detected on Exhibits-1 and 2. Blood could not be
detected on Exhibit-3.

17. According to DNA obtained from the
Exhibits-1 and 2 (paizami of victim and sanitary pad of
victim) was from the single female human source and
matching with each other. DNA could not be obtained
from the Exhibit-3 (underwear of accused).

18. According to supplementary report of PW6
Dr. Shikha Thakur, no definite opinion could be given
about the intercourse.

19. What emerges from the statements as
discussed hereinabove is that the prosecutrix was a
student of primary school. She was going to the
school. She was allured by the appellant. She was
taken to the isolated place. The appellant committed
rape on her. The prosecutrix came back to her house
and narrated the incident to her aunt PW3 Smt. Reeta
and thereafter, to her mother. She was medically
examined.

20. The prosecutrix (name withheld) has
categorically submitted that she was allured by the
appellant and taken to the sweet shop and thereafter,
to an isolated place. The appellant has touched his
private part with her private part. She felt pain. She
was forced to take liquor. She came back to her house.
The door was locked. She narrated the incident to her
aunt and thereafter to her mother. She was taken for
medical examination by her aunt PW3 Smt. Reeta and
PW4 Hoshiyar Singh. The statement of PW1 has been
duly corroborated by the statements of PWs, 2, 3 and

4. The date of birth of the prosecutrix was 30.12.2006.
PW6 Dr. Shikha Thakur has categorically noticed
abrasion marks on her back as well as on her left
thigh. The girl was crying with pain. She could not
separate her legs. The blood stains were found as per
6

the F.S.L. report. PW2 and PW4 have noticed blood
stains on the clothes of the prosecutrix. The Doctor’s
opinion is not a substantive piece of evidence. In the
present case, it is evident from the statement of PW1
that the appellant has raped her. The statement of the
prosecutrix was also recorded under Section 164
Cr.P.C. Though, there is delay in registration of FIR
but court can take judicial notice of the fact that since
the members of the family is at stake, it takes them
time to take final decision. In this case the incident
has happened on 03.07.2015 and the FIR was
registered on 05.07.2015. The absence of semen in the
F.S.L. report was due to late examination of the
prosecutrix.

21. Their Lordships of the Hon’ble Supreme
Court in (2012) 10 SCC 476 in the case of Darbara
Singh Vs. State of Punjab have held that unless oral
evidence available is totally irreconcilable with the
medical evidence, oral evidence would have primacy. It
is only when contradiction between two is so extreme
that medical evidence completely rules out all
possibilities of ocular evidence being true at all, that
occular evidence is liable to be disbelieved. Their
Lordships have held as under:-

“10. So far as the question of inconsistency
between the medical evidence and the ocular
evidence is concerned, the law is well settled that,
unless the oral evidence available is totally
irreconcilable with the medical evidence, the oral
evidence would have primacy. In the event of
contradictions between medical and ocular
evidence, the ocular testimony of a witness will
have greater evidentiary value vis-à-vis medical
evidence and when medical evidence makes the
oral testimony improbable, the same becomes a
relevant factor in the process of evaluation of
such evidence. It is only when the contradiction
between the two is so extreme that the medical
evidence completely rules out all possibilities of
7

the ocular evidence being true at all, that the
ocular evidence is liable to be disbelieved.”

22. Accordingly, there is no merit in the appeal
and the same is hereby dismissed. Impugned
judgment and order dated 30.01.2017 is affirmed.
Appellant is already in jail. He shall serve out the
sentence, so awarded by the trial court.

23. Let a copy of this judgment and order along
with the LCR be transmitted to the Court concerned.

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

07.12.2017
Jitendra

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