CRLA/48/2002 of MEETU SINGH AND ANR Vs STATE

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 48 of 2002

1. Meetu Singh S/o Darshan Singh

2. Nandi @ Nandu S/o Succha Singh

Versus

State of Uttaranchal

- Appellants

Respondent

Sri M.S. Pal, Senior Advocate assisted by Sri Deepak Bist,

Advocate for the appellants.

Sri P.S. Soun, A.G.A. for the State.

Hon’ble B.S. Verma, J. (Oral)

This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 ( for short Cr.P.C.), is directed against the judgment and order dated 20-2-2002, passed by Additional Sessions Judge/2[nd]F.T.C. Nainital in Sessions Trial No. 492 of 1996 State vs. Meetu Singh and another, whereby accused Meetu Singh was convicted U/S 376 I.P.C. and sentenced to undergo R.I. for five years and to pay fine of Rs. 5000/- and accused Nandi @ Nandu was convicted U/S 109 I.P.C. and sentenced to undergo five years R.I. and to pay fine of Rs. 5000/-. In default of payment of fine both the accused were directed to serve out additional imprisonment of six months.

Prosecution story in short is that on 21-2-1996 at about 8-45 p.m. in the night complainant Kulwant Singh lodged written report at P.S. Kashipur with the allegation that on 21.2.1996 his daughter Joginder Kaur aged about 18 years along with her sister Chindar Kaur at about 4 p.m. had gone to the field to attend the natural call and when she was doing latrine in the field at the corner of the river, accused Nandu and Meetu Singh came there. They were armed with single barrel gun and knife. Both the accused threatened Joginder Kaur to act according to their wish and threw her on the ground and took out her salwar. Seeing this the younger daughter of the complainant rushed to her house and told the incident to him. At this mother of complainant along with complainant’s younger daughter went at the spot and saw that accused Meetu Singh was committing

rape upon Joginder Kaur and looking the mother of complainant, accused Meetu Singh ran away from the spot. Thereafter mother of the complainant brought the victim home and narrated the incident to the complainant and then the complainant prepared the written report and lodged it at P.S. Kashipur.

On the basis of written report Ext. Ka.1, Chick F.I.R. Ext. Ka.4 was prepared and case crime No. 241/1996 U/S 376 I.P.C. was lodged at the P.S. Copy of G.D. report is Ext. Ka.5. The investigation of the occurrence was carried by S.I. Kishan Tyagi. He recorded the statements of complainant Kulwant Singh, prosecutrix Km. Joginder Kaur and Chindar Kaur and sent the prosecutrix for medical examination to Kashipur Hospital along with lady constable Parmeshwari. The I.O. prepared site plan Ext. Ka.6, of the place of occurrence, on the pointing out of the prosecutrix. The I.O. took into custody the blood-stained salwar and shirt of the prosecutrix and prepared memo Ext. Ka.2. The statement of Joginder Kaur was also recorded by the Judicial Magistrate Kahsipur U/S 164 Cr.P.C. After completing the investigation the I.O. submitted charge sheet Ext. Ka.7 against the accused persons U/Ss 376 and 506 I.P.C.

The Judicial Magistrate Kahipur committed the case to the court of Sessions for trial.

In Sessions Court, charge U/S 376 I.P.C. was framed against accused Meetu Singh whereas charge U/S 109 I.P.C. was framed against accused Nandi Singh @ Nandu. The accused persons pleaded not guilty and claimed trial.

The prosecution in order to prove its case examined P.W.1, complainant Kulwant Singh, P.W.2 prosecutrix Km. Jogender Kaur, P.W.3, Dr. Vandana Goyal, P.W.4, Chindar Kaur and P.W.5, I.O. S.I. Kishan Tyagi.

Thereafter statements of accused were recorded U/S 313 Cr.P.C. They denied the prosecution case and stated that they have been falsely implicated due to enmity. Accused Meetu Singh also stated that prior to this incident complainant Kulwant Singh had made Kashmir Singh (sister’s husband of Meetu Singh) as witness in some other case and the accused of that case were acquitted as Kashmir Singh did not appear in the court to give his evidence and

due to this reason he had enmity with this accused. Accused Nandi also stated that prior to this incident, Surjit Singh, brother of complainant was murdered, in which Kashmir Singh, brother of Nandi was witness but he did not appear in court to give evidence and due to this reason the accused was acquitted and for this reason complainant had grudge against him.

The learned trial court after hearing counsel for parties and considering the evidence on record convicted and sentenced the accused persons.

I have heard learned counsel for the parties and perused the record.

I have gone through the statements of the witnesses. P.W.1 Kulwant Singh has proved the written F.I.R. P.W.2 prosecutrix Joginder Kaur has supported the prosecution story and has given categorical statement that at the time of incident accused Nandi was armed with gun and accused Meetu Singh was having knife and they both had threatened her to kill if she raises alarm. Thereafter accused committed forcible rape upon her against her will. P.W.4 Chindar Kaur also supported the evidence of P.w.2 Joginder Kaur.

The commission of rape upon Joginder Kaur is also supported by medical evidence. P.W.3 Dr. Vandana Goyal had medically examined the prosecutrix on 21.2.1996 at L.D. Bhatt Hospital Kashipur at 11.30 P.M. and had found that her hymen was torn, blood was coming out from the vagina and stitch was applied to it. It was opined by the medical officer that the injury to vagina could be caused by some blunt object or by male genital. The doctor also expressed the possibility of commission of rape upon the prosecutrix on 21.2.1996 at 4 p.m. Thus the prosecution has been able to prove its case against both the accused persons.

Learned counsel for the accused/appellants raised only one point before this court in the appeal. It is pleaded on behalf of the appellants that date of birth of accused Meetu Singh was 12-8-1980, and the date of incident is 21-02-1996, the age of this accused Meetu Singh was 15 years 6 months and 9 days and the another accused Nandi @ Nandu was born in the year 1979 and at the time of incident he was 17 years of age. In the statement recorded under Section 313

Cr.P.C., the age of both the accused is mentioned by the trial court as 18 years. Said statements were recorded by the trial court on 18-8-2000. Apart from this transfer certificate issued by Primary School Keshav Nagali District Rampur the date of birth of accused Meetu Singh was 12-8-1980, filed on behalf of accused Meetu Singh as Annexure No.1 along with Misc. Application No. 173 of 2012 during the pendency of appeal and copy of Pariwar Register of Succha Singh, father of another accused Nandi @ Nandu has also been filed. According to this Pariwar Register Suchha Singh had been shown having son born in 1979 and the according to this Pariwar Register the age of son of Succha Singh at the time of occurrence was 17 years. In the above circumstance, it is established on the record that the accused Meetu Singh S/o Darshan Singh R/o Navalpur Colony P.S. Kashipur District U.S. Nagar was aged less than 16 years of age on the date of incident and another accused Nandi @ Nandu S/o Succha Singh R/o Durgapur Kahsipur District U.S. Nagar was less than 17 years of age at the time of accident. It appears that nobody raised plea of juvenility before the trial court, during trial.

In view of principle of law laid down in Dharambir Vs. State and another (2010) 5 SCC page 344 read with Pratap Singh vs. State of Jharkhand and another (2005) 3 SCC page 551 and the Section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000, inserted in the year 2006, I am of the view that the sentences awarded against the appellants who were minor on the date of incident, can not be sustained.

Accordingly, the appeal is partly allowed. As far as the conviction of appellants Meetu Singh and Nandi @ Nandu in respect of offences punishable U/Ss 376 and 109 I.P.C. respectively, recorded by trial court are concerned , same are upheld. But keeping in mind that the appellants were minor on the date of commission of crime, the sentences awarded by the trial court are hereby set aside, and to that extent the appeal stands allowed. The appellants are on bail they need not surrender.

Lower court record be sent back.

ISB