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2010 Supreme(UK) 202
2010 (2) N.C.C. 159
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Dharam Veer
Criminal Appeal No. 1188 of 2001
(Old No. 1112/1997)
mukesh dhyani – Appellant/Accused
Versus
STATE – Respondent
Decided on : 20.04.2010
For the Appellant :Mr. V.P. Bahuguna, Advocate
For the Respondent: Mr. Amit Bhatt, Addl. GA
Headnote:Indian Penal Code, 1860, Sec. 376, 366, 363 — Offences under — Conviction for — Sustainability of — Prosecutrix-victim of rape found, on medical examination by doctor on basis of X-ray report, etc., to 16 to 17 years of age — As per settled law two years margin on either side - upper side or lower side can be given — As such, by applying two years margin on upper side, the age of the victim worked out as more than 18 years old and thus she was major at time of incident — Further, the victim having travelled in bus with accused over 360 kilometres through densely populated cities as Dehradun, Kotdwar, Lansdown etc. without making hue and cry and having stayed with accused for a number of days in hotels and at houses of his friends and relations — Such conduct of victim indicating her to be a consenting party to sexual intercourse — Moreover, victim also being found by the doctor to be used to sexual intercourse and no injury or sign of resistance on her part being there — Accused held entitled to benefit of doubt and consequently to acquittal. (Paras 19, 20, 21)
Hkkjrh; n.M lafgrk] 1860] /kkjk 376] 366] 363 & mDr /kkjkvksa ds vUrxZr vijk/kksa esa nks"k flf) dk vkSfpR; & cykRlax ls ihfM+r efgyk ds fpfdRlh; ijh{k.k ds mijkUr mldh vk;q 16&17 o"kZ vkadh xbZ & LFkkfir fof/k ds vuqlkj mlesa Åij uhps nks o"kZ dk vUrj gks ldrk gS vr% 2 o"kZ ds vUrj dks Åij dh vksj ykxw djrs gq, ihfM+r efgyk dh vk;q 18 o"kZ vk,xh & vr% og ?kVuk ds le; o;Ld Fkh & blds vfrfjDr ihfM+r efgyk us vfHk;qDr ds lkFk nsgjknwu] dksV}kj o ySUlMkmu tSls ?kuh vkcknh okys 'kgjksa esa ls cl vkfn }kjk xqtjrs gq, yxHkx 360 fdyksehVj dk lQj fcuk fdlh gYyk xqYyk ds fd;k rFkk vfHk;qDr ds lkFk 5 fnu rd gksVyks] vfHk;qDr ds nksLr o fj'rsnkjksa ds ?kjksa ij jgh & efgyk ds ,sls vkpj.k ls tkfgj gksrk gS fd efgyk ds lkFk eSFkqu mldh LosPNk ls gqvk & blds vfrfjDr ihfM+r efgyk] MkDVjh tkap ds vuqlkj eSFkqu dh vH;Lr ikbZ xbZ & efgyk ds 'kjhj ij dksbZ pksV ;k mlds }kjk eSFkqu ds fojks/k dk Hkh dksbZ y{k.k uk gksuk & lHkh ifjfLFkfr;ksa dks ns[krs gq, vfHk;qDr 'kd ds ykHk dk ik= gksrs gq, nks"keqfDr dk vf/kdkjh ik;k x;kA ¼izLrj 19] 20] 21½
Hon’ble Dharam Veer, J.
This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 13.5.1997 passed by the Ist Additional Sessions Judge, Dehradun in Sessions Trial No. 155/1995, State v. Mukesh Dhyani, whereby the learned Ist Additional Sessions Judge has convicted the appellant/accused Mukesh Dhyani under Sections 363, 366 and 376 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo five years’ R.I. under Section 376(1) IPC and to pay a fine of Rs. 5,000/-, five years’ R.I. under Section 366 IPC and to pay a fine of Rs. 5,000/- and two years’ R.I. under Section 363 IPC and to pay a fine of Rs. 2,000/-. So far as the default in payment of fine is concerned, the accused in default of payment of fine U/s 376 IPC, was directed to further undergo an imprisonment of six month; in default of payment of fine U/s 366 IPC, he was directed to further undergo an imprisonment of six months and in default of payment of fine U/s 363 IPC, he was directed to further undergo an imprisonment of three months. However, the substantive sentences under Sections 363/366/376 were directed to run concurrently.
2. In brief, the prosecution case is that PW2 Kundan Singh lodged an FIR on 4.3.1995 at 8.10 pm in reporting police chowki Patel Nagar, Dehradun with the averments that his daughter Km. Seema (PW3) aged about 16-17 years had gone for studying at Bhuntu Wala. As usual when she did not return by 2 pm, the complainant and his wife went out to search her. In the meantime, PW1 Pawan Singh informed the complainant on the same day that he had seen her daughter and accused appellant Mukesh Dhyani together near Indian Wildlife Institute at about 9 am. It was further averred that accused appellant Mukesh Dhyani, a neighbour of the complainant, enticed his daughter and had taken her away with him. On the basis of this report, chick FIR Ex. Ka-5 was prepared by Head Constable Harendra Singh. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-6. The investigation of this case was entrusted to PW5 SI Prem Prakash Sharma. The victim was recovered along with the accused appellant on 9.3.1995 at 6.20 pm from the Bus Stand, Dehradun by PW6 SI Narendra Singh Rana, who also prepared the recovery memo Ex.Ka-10. The victim Km. Seema (PW3) was medically examined by PW4 Dr. Renuka Naithani on the same day i.e. on 9.3.1995 at 7.15 pm and prepared the medical report Ex.Ka-2 and supplementary report Ex.Ka-3 on the basis of X-ray report Ex.Ka-4. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex.Ka-7. He also prepared the site plan from where the victim was recovered, that site plan is Ex.Ka-11. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex.Ka-12 against the accused appellant.
3. Learned CJM, Dehradun, after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 24.5.1995. Learned Sessions Judge, Dehradun transferred the case to Ist Additional Sessions Judge, Dehradun for its disposal according to law.
4. On 21.7.1995, learned Ist Additional Sessions Judge, Dehradun framed the charges against the appellant/accused under Sections 363, 366 & 376 IPC. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution has examined PW1 Pawan Singh; PW2 Kundan Singh, the complainant and father of the victim; PW3 Km. Seema, the victim; PW4 Dr. Renuka Naithani, who medically examined the victim and prepared the medical report Ex.Ka-2 and supplementary report Ex.Ka-3; PW5 SI Prem Prakash Sharma, the I.O. of the case and PW6 SI Narendra Singh Rana, who recovered the vi
