CRJA/13/2017 of Vijay Painuli Vs State Of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No. 13 of 2017Vijay Peinuly ……..…Appellant

Versus

State of Uttarakhand ………Respondent

Mr. Vipul Sharma, Amicus Curiae for the appellant. Mr. P.S. Bohara, A.G.A. for the State.

Chronological list of cases cited:

1. (2011) 7SCC 130 Krishan Kumar Malik Vs. State of Haryana, 2. (2012) 8 SCC 11 Rai Sandeep @ Deepu vs. State (NCT of Delhi) 3. (2012) 6SCC 204 Jitendra Kumar vs. State of Haryana.4. (2008) 5 SCC 354, Vishwanathan Vs. State.Hon’ble Lok Pal Singh, J.

This appeal, moved on behalf of the accused/ appellant Vijay Peinuly, received through Superintendent of District Jail, Haridwar, is directed against the judgment and order dated 15.10.2016 passed by the Sessions Judge, Tehri Garhwal in S.T. No. 03 of 2015 whereby said court has convicted accused/ appellant under section 376(2)(1) of IPC and sentenced him to rigorous imprisonment for period of ten years along with fine of ` 25,000/-.

2. Prosecution story, in brief, is that P.W.1 complainant/ father of the prosecutrix gave written report (Ex.A2) with the averments that his daughter/victim aged about 36 years, is mentally disabled and used to reside with her mother at Khaleti. On 26.09.2015, at about 10:00 a.m. when she was coming from Bhatgaon to meet her mother at Khaleti, on the way there is hotel of the accused Vijay Peinuly, who lured and committed rape with the victim in the hotel. On the date of the incident complainant was out of station, when he returned back on 17.10.2015 then his wife disclosed him about the incident. On the basis of said report, FIR (EX. A8) was got lodged at P.S. Ghansali,

District Tehri Garhwal under section 376(2)(l) of IPC against the accused person. The Investigation was conducted by Sub Inspector Kishan Kumar Tamta (P.W.7), who sent the victim through lady Constable for medical examination at District Hospital Baurari, New Tehri. Thereafter, he recorded the statements of the witnesses, prepared site plan (Ex. A13), prepared arrest memo (Ex. A12), made entry in the G.D.(Ex. A15) and moved an application for recording the statement of the prosecutrix under section 164 Cr.P.C. and after completion of the investigation filed charged sheet against the accused under section 376(2)(L) of IPC.

3. The case was committed to the Court of District and Sessions Judge, Tehri Garhwal for trial. The trial court framed charge against the appellant under section 376(2)(1) IPC. To the said charge, appellant pleaded not guilty and claimed to be tried.

4. To bring home the guilt of the accused appellant, prosecution got examined as many as seven witnesses, viz., P.W.1 victim, P.W.2 father of the victim, P.w.3 mother of the victim, P.W.4 Tara Devi, P.W.5 Dr. Satwant Kaur, P.W.6 Head Constable Ummed Singh and P.W.7 S.I. Kishan Kumar Tamta. Thereafter, evidence of the accused- appellant under section 313 Cr.P.C. was recorded wherein he pleaded he has been falsely implicated in the case and claimed to be tried. However, no evidence in defence was adduced.

5. The learned trial court having heard learned counsel for the parties and after perusal of the material available on record, concluded that the prosecution has been successful in establishing the guilt of the accused beyond reasonable doubt and held him guilty for the offences punishable under section 376(2)(l) IPC and

sentenced him accordingly. Aggrieved by the judgment and order dated 15.10.2016 the appellant is before this Court.

6. P.W.1 prosecutrix is suffering from moderate mental retardation, therefore her statement was not recorded rather in question answer form she stated that in the month of September she was going to attend Boliya Pooja at Chandely, and accused Vijay Peinuly who was in his shop at that point of time stopped her in his shop and committed rape upon her. When she came back, she told the incident to her parents and to Mami Ji also. In her cross-examination she denied the suggestion that no rape was committed upon her and also denied the defence plea by answering that she did not try to pick anything from the shop of the accused/appellant.

7. P.W.2 complainant/father of the victim has fully supported the version of the FIR which has already been adverted to.

8. P.W.3 mother of the victim also fully corroboratedthe version of P.W.2.

9. P.W.4 Tara Devi in her statement has deposed that she was health worker and used to organize camps in the village in order to inoculate the pregnant women and children. On 26.09.2015 when she had organized camp at Village Bhatgaon, in the camp P.W.3 mother of the victim came there with urine of her daughter to know about the pregnancy of her daughter and after test it was found negative. P.W.3 disclosed her that something wrong had been committed with her daughter.

10. P.W.4 Dr. Satwant Kaur who has medically examined the victim found following injuries on the person of the victim:-

(i) Contusion blue in colour, medial side on right leg in upper 2/3.

(ii) Contusion blue in colour, on rights thigh 1/3 medial side just above popliteal fossa.

On local examination perineum found normal, urethral meaties/vestibule found normal, labia minora and major found normal, hymen was found torn.

This witness further proved medico legal case (Ex. A4), ultrasound report ( Ex. A6) and pathological report (Ex. A7). In her statement she has further stated that victim narrated the incident before her as “ eSa [kysVh tk jgh Fkh fCkTtq (present accused) us cksyk b/kj vk mlus eq>s idM+ fy;k fQj dgk VkWQh [kkrh gS eSaus cksyk ugha [kkrhA fQj oks esjk gkFk [khapdj jlksbZ esa ys x;k eSa fpYykus yxh mlus njoktk yxk fn;k FkSys ij eq>s lqyk fn;k fQj xyr dke fd;kAShe further stated that victim also mentioned type of sexual violence by mentioning forceful pressure by hands and arms and chest. It is also stated that the victim had changed her clothes and undergarments, she had taken bath and had passed urine and stool, so in this regard no further examination was possible. It is further stated that victim was case of right eye phthisis bulb i.e. right eye disability 50% with moderate mental retardation 70% and as per the disability certificate (Ex. A3) issued by Medical Board, Tehri Garhwal her disability is 70%.

11. P.W.7 Kishan Kumar Tamta, Investigaton Officer, after receiving the investigation of the case, recorded the statement of the witnesses, prepared arrest memo and on completion of investigation submitted charge sheet (Ex. A18) against the accused.

12. Heard, learned Amicus Curiae for the appellant, learned counsel for the State and perused the entire material available on record.

13. It is the contention of the learned Amicus Curiae that the FIR has been lodged after 24 days of the incident. It is further submitted that statement of the P.W.3 suffers from discrepancy. It is also contended that medical report does not say anything about the commission of rape and also pathological report suggests that no spermatozoa was found. In support of his contention of learned Amicus Curia relief upon the following judgments: Krishan Kumar Malik[1], Rai

Sandeep[2] and Jitendra Kumar[3].

14.It is the submission of the learned Amicus Curiae that the FIR is delayed one. I find no force in the submission of the learned Amicus Curiae. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it cool thought that complaint of sexual offence is generally lodged. In case of Vishwanathan[4]Hon'ble Supreme Court held that prosecution case should not be thrown out on ground of delay other factors like trauma suffered by victim, sociological factors alongwith other evidence should be taken into consideration.

15. I have also gone through the statement of the prosecutrix/ victim. In her statement, in question answer format, she has specifically mentioned that accused appellant committed rape with her and in her cross-

examination nothing comes out which creates doubt in her testimony. Also, from the statement of P.W.4 Smt. Tara Devi it is confirmed that victim was subjected to sexual violence committed by the accused, as the mother of victim, when came to know about the incident, was suspecting pregnancy, therefore she rushed to P.W.4 for pregnancy test of her daughter (victim) in which the test was found negative.

16. For the reasons as discussed above, this Court finds no force in this appeal. Accordingly, the appeal is dismissed. Let copy of this judgment be sent to the Superintendent of the Jail concerned for information Lower court record be sent back.

Parul

(Lok Pal Singh, J.) 13.03.2019.