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2017 Supreme(UK) 365
IN THE HIGH COURT OF UTTARAKHNAD AT NAINITAL
LOK PAL SINGH, J.
Dalip S/o Sri Vishnu - Appellant
Vs.
State of Uttarakhand - Respondent
Criminal Jail Appeal No. 18 of 2016
Decided on : 04-10-2017
Advocate Appeared:
For the Appellant :Ms. Manisha Bhandari, Advocate
For the Respondent: Mr. P.S. Bohara, A.G.A.
The main legal point established in this judgment is that the conviction under Section 377 of IPC requires evidence of carnal intercourse against the order of nature, which was not present in this case. However, the court upheld the convictions under other sections based on the evidence presented.
Headnote:
POCSO Act - Section 8 - The appellant was convicted under Section 8 of the POCSO Act, which deals with sexual assault on a child. The court upheld the conviction under this section and sentenced the appellant to rigorous imprisonment for 3 years along with a fine of Rs.1000/.
Fact of the Case:
The appellant was convicted under Section 377 of IPC, Section 354-A IPC, Section 354-B IPC, and Section 8 of the Protection of Children From Sexual Offences Act, 2012. The appellant's wife filed a complaint stating that he had committed obscene acts with their daughter. The appellant was sentenced to imprisonment and fines for each offense. The court found that there was no evidence to support the conviction under Section 377 of IPC, but upheld the convictions under the other sections. The court ordered the release of the appellant as he had already served more than 3 years in jail.
Finding of the Court:
The court analyzed the evidence presented by the prosecution witnesses and found that there was no evidence of carnal intercourse against the order of nature, which is required for a conviction under Section 377 of IPC. However, the court found sufficient evidence to uphold the convictions under Section 354-A IPC, Section 354-B IPC, and Section 8 of the POCSO Act. The court also considered the fact that the appellant had already served more than 3 years in jail and ordered his release.
Ratio Decidendi: The court held that the appellant's conviction under Section 377 of IPC was not supported by evidence and set it aside. The court upheld the convictions under Section 354-A IPC, Section 354-B IPC, and Section 8 of the POCSO Act. The court ordered the release of the appellant as he had already served more than 3 years in jail.
Result: The court partly allowed the appeal, setting aside the conviction under Section 377 of IPC and upholding the convictions under Section 354-A IPC, Section 354-B IPC, and Section 8 of the POCSO Act. The court ordered the release of the appellant as he had already served more than 3 years in jail.
This criminal jail appeal arises out of the Judgment and Order dated 14.09.2015, passed by Fast Track Court/Special Judge, POCSO Act/Additional District and Sessions Judge, Dehradun, whereby the appellant was convicted under Section 377 of IPC and sentenced to undergo rigorous imprisonment for a period of 07 years along with a fine of Rs.5000/. In default of payment of fine, the appellant/accused was directed to undergo further one month simple imprisonment. The appellant/accused was convicted under Section 354-A IPC and sentenced to undergo rigorous imprisonment for a period of 03 years. The appellant/accused was convicted under Section 354-B IPC and sentenced to undergo rigorous imprisonment for a period of 03 years along with a fine of Rs.3000/. In default of payment of fine, the appellant/accused was directed to undergo further 15 days’ simple imprisonment. The appellant/accused was convicted under Section 8 of the Protection of Children From Sexual Offences Act, 2012 and sentenced to undergo rigorous imprisonment for a period of 03 years along with a fine of Rs.1000/. In default of payment of fine, the appellant/accused was directed to undergo 15 days simple imprisonment. It was directed that all the sentences shall be run concurrently and the period already undergone by the appellant/accused shall be adjusted.
2. Smt. Kamla Devi W/o present appellant/accused gave a complaint to the Police Station Patel Nagar, Dehradun on 14.04.2014 at about 12:15 a.m. stating therein that on 13.04.2014 at about 09:00 p.m. she went to deliver the milk at N.C.R. Residency. When she returned her house, she saw that her husband Dalip was doing obscene act with her elder daughter in bathroom. When she called them, Dalip and her daughter came out from the bathroom. Her daughter told her that the appellant was trying to commit obscene act with her. On the said complaint, a Case Crime No. 106 of 2014 under Sections 354-A, 354-B I.P.C. and Section 7/8 of the Protection of Children From Sexual Offences Act, 2012 was lodged at Police Station Patel Nagar, Dehradun. The victim was medically examined at Emergency of District Female Hospital, Dehradun. The prosecutrix was medically examined on 14.04.2014 at about 12:55 a.m. at Doon Women Hospital Dehradun and supplementary report was also prepared on 17.04.2014. The accused/appellant was arrested on 14.04.2014 at about 10:30 a.m. from his house but it is not mentioned in the arrest-memo whether it was 10:30 a.m. or 10:30 p.m. The undergarments of accused/appellant were taken into custody by the police on 14.04.2014. The Investigating Officer sent the clothes & undergarments of accused as well as of the prosecutrix for Forensic Science Laboratory and prepared the spot map and after investigation submitted the charge-sheet to the Special Judge, Dehradun, who in turn, took cognizance of the offences punishable under Sections 377, 354-A, 354-B read with Section 7/8 of POCSO Act, 2012. The report of Forensic Science Laboratory, Uttarakhand suggests that the semen and blood could not be detected at Ext. 1 & 2 sent for its examination. The Special Judge, Dehradun framed charges against accused/appellant for the offenses punishable under Sections 377, 354-A, 354-B of I.P.C. and Section 7/8 of POCSO Act, 2012.
3. The prosecution adduced as many as 09 witnesses. Complainant Smt. Kamla Devi was produced as PW1, who deposed that the prosecutrix was aged about 14 years and was studying in Class VII in Maheshanand Junior High School Majra, Dehradun. The incident took place on 13.04.2014 at about 8:30 p.m. when she went to supply the milk. When she came back at 9:00 p.m. to her house, she called her daughter. Upon her call, appellant came out from the bathroom and her daughter was weeping and she was naked. On asking from the girl, she told that her father has done something on her back and she was crying and saying that she is feeling pain. On asking from the accused/appellant, he said that he did nothing. T
