IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No. 25 of 2015

Khadku
…. Appellant
Versus
State of Uttarakhand
…. Respondent

Mr. Charanjeet Kuar, Amicus Curiae for the appellant.
Mr. T.C. Agarwal, A.G.A. for the State.

Hon’ble Servesh Kumar Gupta, J.

By means of this jail appeal the judgment and
order of conviction dated 02.5.2015 rendered by Special
Judge, POCSO, Dehradun has been put under challenge.

The learned Judge has found the accused guilty
for the offence of section 363 IPC sentencing him to two
years simple imprisonment along with Rs. 500/- fine. In
default of payment of fine he shall undergo 15 days simple
imprisonment further. The accused has also been found
guilty for the offence of section 366-A wherefor the learned
Judge has sentenced him 5 years simple imprisonment
along with Rs. 1,000/- fine. In default of payment of fine he
has been asked to undergo 15 days further simple
imprisonment. The accused has also been convicted for the
offence of section 376 IPC sentencing him 10 years rigorous
imprisonment along with Rs. 10,000/- fine. In default of
payment of fine he has been asked to undergo 15 days
simple imprisonment. Conviction has also been recorded
under section 4 of the Protection of Children from Sexual
Offences Act 2012 (herein after called as the Act) and
sentenced to 7 years rigorous imprisonment along with Rs.
5,000/- fine. In default of payment of fine he has been
asked to undergo 15 days simple imprisonment further. All
the sentences have been directed to run concurrently
2

adjusting the period of imprisonment which he has
undergone during the course of trial.

The incident occurred on 03.4.2014 around
06/07:00 PM when victim Km. Tara, aged about 12 years
(date of birth 01.4.2002) was guarding the wheat crop of
her father. She was apprehended by the accused and
forcibly taken away in thatched like structure nearby. She
was kept confined in that premises over night and during
the whole night she was subjected to forcible sexual
intercourse and was left there at dawn of the next day. The
accused fled away from the spot. Victim came herself to her
house and discloses the whole incident to her mother who
in turn narrated the same to her husband Mr. Tiku. So, the
FIR was handed over to the Revenue Sub Inspector of the
circle which is exhibit-ka 1. The chic report is exhibit-ka 5
which was lodged on 04.4.2014 at 01:00 PM while the
place of occurrence is around 6 km. distance from the
Patwari circle outpost.

The report was lodged under section 376 IPC.
Statement of the girl under section 164 was got recorded by
the Judicial Magistrate, Dehradun on 13.5.2014. The girl
was then produced for medical examination in the Govt.
Community Health Center, Chakrata on 04.4.2014 at
07:45 PM where she underwent the medical examination
by the competent doctor. The following report was
submitted:

1. Stains of dried blood and secretion seen around
the genital area.

2. Blood is seen coming from vagina.

3. Vaginal examination is painful/tender. Hymen
is ruptured.

4. In the opinion of doctor physical signs were
suggestive of sexual assault and penetration.
3

Doctor took away the following samples:

1. Dried scrapping around genitalia.

2. Vaginal secretion.

3. Salwar was taken, sealed and handed over to
police for further examination.

Such articles were sent for the Forensic Science
Laboratory examination. The report whereof is available on
the record. It suggests that semen could not be detected on
either of these articles.

The investigation culminated into the
submission of charge sheet for the offence of section 376
IPC r/w 4/6 of the Act but the learned Judge levelled the
charges for the offence of section 363, 366A, 376 IPC as
well as section 4 of the Act. The accused could be arrested
after 16 days of the occurrence on 19.4.2014. So, there was
no propriety/relevancy for his medical examination.
However, he is undergoing incarceration since then.

The prosecution has examined PW1 Tiku, the
informant/father of the victim, who has proved the lodging
of the first information report. He is quite illiterate villager
of the remote hills. However, nothing could come out to
disbelieve his statement.

The star witness is Km. Tara, aged about 12
years. He has deposed that accused-Khadku who is her
uncle was in a drunken state and forcibly took her to
nearby thatched covered premises and kept her confined
for the whole night. She was permitted to leave the place
around 06:00 AM in the morning. So, after coming to the
home she narrated the whole incident to her mother.
Thereafter, her father took her for medical examination.
When the accused tried to take away forcibly she raised the
screams but of no avail in the premises where she was
forcibly sexually assaulted. It was dark all around at the
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time of forcible sexual assault attempt. She cried but none
came there to her rescue. At the time of incident the
accused forcibly put off all the clothes.

PW3 is Dr. Manvendra Kaur, who examined the
victim on 04.4.2014 at around 07:45 PM and has proved
the medical examination report exhibit-ka 2 which has
been aforementioned. The doctor has proved that in her
opinion it was a case of sexual assault and penetration too
because the hymen was ruptured (broken). The doctor has
further reiterated that if this victim is subjected to forcible
sexual intercourse in the night of 03/04.4.2014, then the
rupturing of the hymen could have been in such a manner
along with laceration.

Doctor has further proved that the menstruation
cycle of the victim had not commenced by that time,
therefore, the dried scrapping as well as lacerations around
genitalia were the result of the sexual assault. It has also
been proved that there was reddish swelling on all around
of vaginal part.

PW4 Ms. Sarita Pandey is the Principal and has
proved the date of birth 01.4.2002 of the victim. PW5 is the
Revenue Sub Inspector of the circle who has recorded the
first information report in the concerning register and has
sent the items to the forensic science laboratory, the report
whereof has been proved.

The accused under section 313 Cr.P.C.

statement has taken the plea of alibi that on the date of
occurrence he was in Himachal Pradesh, but he has not
substantiated this statement by any evidence much less
reliable evidence. He has produced DW1 Mr. Supa, aged
about 58 years, in his defence who has proved that Khadku
is the married person and he got married 5 to 6 years ago.

I think this witness is not reliable because the
age of Khadku at the time of occurrence was around 18
5

years so how it could be accepted that he got married at
the age of 12 only. Even if this statement is accepted for a
moment that the accused was married person then also
such status can’t obviate him from the commission of this
type of crime.

DW2 is Mr. Jagat Ram. He has also not deposed
anything which may create a doubt in the prosecution
story.

In view of what has been discussed above, I feel
there is no force in this appeal. It is hereby dismissed but
at the same time, I feel it expedient in the interest of justice
to modify the quantum of sentence as under:

For the offence of section 363 366-A as well as
for the offence of section 4 of the Act the sentence and the
fine imposed are not disturbed.

However, for the offence of section 376 IPC I
modify the sentence from 10 years rigorous imprisonment
to 7 years only along with fine of Rs. 1,000/- instead of
Rs. 10,000/-. In default of payment of fine he will further
undergo 15 days imprisonment.

All the sentences so awarded shall run
concurrently and the period which the appellant has
already undergone during the course of trial and after
recording of the conviction shall be adjusted in the total
period of sentence calculated by the competent authorities.

(Servesh Kumar Gupta, J.)
25.10.2017
Pooja