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2013 Supreme(UK) 675
HIGH COURT OF UTTARAKHAND AT NAINITAL
Sudhanshu Dhulia, J.
Num Kumar @ Rajkumar - Appellant
Vs.
State of Uttarakhand - Respondent
Criminal Appeal No.28 of 2007
Decided On : 20th August, 2013
Advocate Appeared:
Mr. D. C. Joshi, Advocate for the appellant
Mr. Suhail Siddiqui, A.G.A. for the State
The central legal point established in the judgment is the requirement to establish charges beyond reasonable doubt, especially in cases involving the testimony of the prosecutrix.
Headnote:
Section 376 IPC - Rape - Act No.43 of 1983 - Section 228A - Summary
Fact of the Case:
The case involved the alleged rape of a 15-year-old girl by the appellant. The medical report indicated the girl's age to be less than 17 years and more than 16 years. The appellant was convicted under Section 376 IPC but acquitted under Section 506 IPC.
Finding of the Court:
The court found the evidence of the prosecutrix to be doubtful, considering the lack of injury on her body, the proximity of the accused's family during the alleged incident, and the age of the accused and the prosecutrix. The court concluded that it could only be a case of consensual sex and acquitted the appellant due to the lack of establishment of charges beyond reasonable doubt.
Issues: The issues revolved around the credibility of the prosecutrix's testimony, the presence of consent, and the burden of proof on the prosecution.
Ratio Decidendi: The court emphasized the importance of establishing charges beyond reasonable doubt and the need for the testimony of the prosecutrix to be truthful and inspiring confidence. It considered the lack of injury, the proximity of the accused's family, and the age of the parties involved in reaching its decision.
Final Decision: The appellant was acquitted from the charge of rape under Section 376 IPC, and the conviction and sentence awarded by the trial court were set aside.
Sudhanshu Dhulia, J.
1. This criminal appeal challenges the judgment and order dated 27.01.2007 passed by the Addl. Sessions Judge, Roorkee, District Haridwar in S.T. No.288/2003 whereby the appellant-Num Kumar @ Rajkumar was convicted under Section 376 I.P.C. and sentenced to undergo imprisonment for seven years and a fine of Rs.5,000/-. In default of payment of fine of Rs.5,000/-, the appellant has to further undergo imprisonment for one year. However, the appellant was acquitted for the offence punishable under Section 506 I.P.C.
2. At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of the I.P.C. By an amendment in the I.P.C., Section 228A has been inserted vide Act No.43 of 1983, which bars the disclosure of the identity of the prosecutrix by publication and in fact it makes it an offence. Although, printing and publication in a law journal may not be included in the definition of “printing and publication”, yet purely for reasons of abundant precaution, the name of the alleged victim has not been mentioned in the present judgment and the victim is only addressed here as the “prosecutrix”.
3. The brief facts of the prosecution story are that an F.I.R. was lodged by the father of the prosecutrix i.e. Ram Singh at Police Station Bhagwanpur, Haridwar on 16.05.2003 at 12:45 PM alleging that in the intervening night of 15/16th May, 2003 his daughter aged about 15 years was sleeping in her house and when in the midnight his daughter, who was suffering from loose-motions, went out of the house to relieve herself when the accused Num Kumar @ Rajkumar caught her and dragged her forcibly to his house, which was adjoining to the house of complainant. There the prosecutrix was raped by the accused in his house. The parents of the prosecutrix searched for their daughter throughout the night, but all in vain. In the morning of 16.05.2003, the prosecutrix came to her house and informed her parents that she was raped by accused in his house. Thereafter, the prosecutrix was medically examined by Dr. (Ms.) B. L. Narang PW3 at J.N.S.M. Government Combined Hospital, Roorkee on 16.05.2003 at 1:45PM. Medical report states that axillary hairs are thin and pubic hair are also thick. Both breasts are developed. The medical report further states that there was no sign of injury on the body of the prosecutrix. The hymen is old torn admits only one finger easily and that she is not habitual to sexual intercourse. The prosecutrix was sent for bone ossification test in order to determine her age. The radiologist report indicates that the age of girl was less than 17 years and more than 16 years. The radiologist report further states that no definite opinion can be given about rape. The pathological report states that no spermatozoa was seen dead or alive.
4. The matter was investigated and a charge-sheet was filed against the accused person. Thereafter, the matter was committed to Sessions, where charges against the accused appellant were framed under Section 376 & 506 IPC on 05.02.2004.
5. At this stage, it needs to be mentioned here that from the evidence on record it appears that the appellant was about 17 years of age.
6. In order to prove its case, the prosecution has examined as many as four witnesses, out of which, Ram Singh PW1 is the complainant and father of the prosecutrix. The prosecutrix was examined as PW2, Dr. B. L. Narang, who was the medical officer, was examined as PW3 and Sub Inspector Hemendra Singh, who investigated the matter, was examined as PW4. Apart from the prosecution witnesses, the defence has also examined two witnesses, namely Padam Singh DW1, who was ex-Gram Pradhan of the village and Joginder Singh DW2 who belongs to another village.
7. Ram Singh, who is the father of the prosecutrix, was examined as PW1. He states in his examination in chief that his daughter was about 14 years of age at the time of the alleged incident and since on the fateful night his daughter was
