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2013 Supreme(UK) 305
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice U.C. Dhyani
BUDDHI ALIAS SURENDRA – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
Criminal Appeal No. 82 of 2012
Decided on : 28.06.2013
For the Appellant :Mr. Sandeep Kothari, Advocate
For the Respondent:Mr. S.A. Siddiuqui, Advocate
Headnote:Indian Penal Code, 1860, Sec. 376 and 376(2) — Attempt to offence of rape — Conviction — Victim was 11 years old at the time of incident — She told that when she was washing utensils on the bank of river, accused-appellant came there and inflicted blow of lathi (stick) on her shoulder and threw stones at her — PW1 also told that accused pressed her mouth and dragged her in the jungle and disrobed her and also took off his wearing apparels — When she cried, her mother who had been to fetch the grass came and pulled the accused — If her mother had not come to the place of occurrence, the accused would have committed rape with her — In the cross-examination of PW1 nothing to indicate that she was telling a lie — Thus, evidence tendered by her inspired confidence and was reliable — According to mother of prosecutrix when she was coming back from the jungle she heard the cries of her daughter/PW1 and on reaching to the place of occurrence — She pulled the accused, who took his pant and fled away — No rape was committed in her presence — Evidence of PW1 was corroborated by PW2 — Ocular testimony of PW1 and PW2 duly corroborated by medical evidence — Thus, prosecution case was proved against the accused beyond reasonable doubt — Conviction and sentence awarded to the accused-appellant by the trial court u/s 376(2)(F), IPC affirmed — No interference.
(Paras 3, 5, 6, 10, 12, 13)
Hkkjrh; n.M lafgrk] 1860] /kkjk 376 vkSj 376¼2½ & jsi ds vijk/k dk iz;kl & nks”kflf) & ihfM+rk ?kVuk ds le; 11 o”kZ dh Fkh & mlds vuqlkj tc og unh fdukjs crZu lkQ dj jgh Fkh] vfHk;qDr&vihykFkhZ ogk¡ vk;k vkSj mlus ihfM+rk ds daèks ij ykBh ekjh o ml ij iRFkj Qsads & mlus ;g Hkh dfFkr fd;k fd nks”kh mldk eq¡g nckdj taxy dh vksj ys x;k vkSj mlus ihfM+rk ds o Lo;a ds diM+s mrkjs & tc og fpYykbZ rc mldh ek¡ tks ikl gh ?kkl ysus vkbZ Fkh ogk¡ igq¡ph vkSj vijk/kh dks gVk;k & vxj ihfM+rk dh ek¡ le; ij ?kVuk LFky ugha igq¡prh rc vfHk;qDr us ihfM+rk ij jsi dkfjr dj fn;k gksrk & PW1 dh izfr ijh{kk ls dgha Li”V ugha fd vfHk;ksD=h >wB cksy jgh Fkh & PW2 dh ek¡ }kjk Hkh ?kVuk dh iqf”V ftlus dFku fn;k fd mlds gVkus ij vfHk;qDr viuh iSaV ysdj ogk¡ ls Hkkx x;k Fkk & vkSj mldh mifLFkfr esa jsi dkfjr ugha gqvk & PW1 o PW2 dk izR;{k lk{; fpfdRlk lk{; ls iq”V & vfHk;kstu okn fuLlansg vijk/kh ds fo#) fl) & vfHk;qDr@vihykFkhZ dh fopkj.k vnkyr }kjk nks”kflf) o n.M dh u/s 376(2)(F) vfHkiqf”V & gLr{ksi ughaA
¼izLrj 3] 5] 6] 10] 12] 13½
Hon’ble U.C. Dhyani, J. (Oral)
A first information report (Ext. Ka-8) was lodged by the informant Vikram on 01.06.2011, at 8:00 p.m. in patwari circle Toli Bangarh, Kirti Nagar, District Tehri Garhwal against the accused for the offences punishable under Sections 323, 504, 506 and 376 IPC, taking recourse to Section 156(3) Cr.P.C. The application under Section 156 (3) Cr.P.C. was moved by the complainant Vikram in the Court of Chief Judicial Magistrate, Tehri Garhwal on 28.05.2011 and only thereafter the first information report was lodged on 01.06.2011. After the investigation, a charge sheet (Ext. Ka-10) against the accused for the offences punishable under Sections 376/511, 323, 504 and 506 IPC was submitted.
2. The case was committed to the Court of Sessions. When the trial began and prosecution opened it’s case, charge for the offences punishable under Sections 376/511, 323, 504 and 506 IPC were framed against the accused, who pleaded not guilty and claimed trial. PW 1 Kumari Pinki (victim), PW 2 Vaishali Devi (mother of the victim), PW 3 Vikram (informant, father of the victim), PW 4 Ramesh (brother of informant), PW 5 Dr. Satwant Kaur, Medical Officer and PW 6 Jabbar Singh Panwar (investigating officer) were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C. in reply to which he said that he was falsely implicated in the case. He said that victim’s grandmother picked up a quarrel with him and his wife which resulted in reconciliation but still he was falsely implicated in this case. No evidence was given in defence. After considering the evidence on record, learned Additional Sessions Judge, Tehri Garhwal found the accused guilty of the offences for which he was charged. He was sentenced to undergo five years’ rigorous imprisonment along with a fine of Rs. 5000/- under Section 376/511 IPC. He was directed to undergo rigorous imprisonment for one month each under Sections 323 and 506 IPC. Both the sentences were directed to run concurrently. Aggrieved against the impugned order dated 26.03.2011, present criminal appeal was preferred.
3. Prosecution led the evidence through PW 1 Kumari Pinki /victim.
She was 11 years of age when she came to depose. After conducting her voir dire and being satisfied with the fact that PW 1 was capable of understanding the things, the trial court permitted her examination. PW 1 said that on 28.05.2011, at 9:00 a.m., she went to wash her utensils on the bank of river. His father and his uncle were sitting in the village. Her mother went to jungle to fetch grass. Her sister was at home. When she was washing utensils on the bank of river, accused- appellant Buddhi alias Surendra came there. He inflicted blow of lathi (stick) on her shoulder. He also threw stone on the wrist of her arm. PW 1 also said that accused pressed her mouth and dragged her in the jungle, near temple. He disrobed her and also took off his wearing apparels. The accused took off the trousers of the victim. He also took out his lower wearing apparels. PW 1 was wearing pyjama (trousers). Accused laid on her (PW 1). Her mother had been to jungle to fetch the grass. The accused told PW 1 not to disclose the incident to anyone, otherwise, he will kill PW 1. When she cried, her mother came. Her mother pulled accused. He ran away thereafter. Had PW 1’s mother not come to the place of occurrence, the accused would have committed rape with her. PW 1 along with her mother PW 2 went to their home. Many a people assembled at their home. PW 1 and PW 2 told PW 3 about the incident. PW 1 also explained the injuries caused to her. Her statement was recorded by the Magistrate. PW 1 also proved her statement under Section 164 Cr.P.C., in which she said as below:
“On 28.05.2011, at 9:00 a.m., my mother went to fields to fetch grass. My father had gone to the house of my uncle in another mohalla. I went to wash the utensils and for fetching water at the bank of a river.
