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2021 Supreme(UK) 152
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Lok Pal Singh, J.
Usman @ Sameer - Appellant
Versus
State Of Uttarakhand - Respondent
Criminal Appeal No. 206 of 2020
Decided On : 25-01-2021
Parikshit Saini, Advocate, Shubhash Tyagi Bharadwaj, Advocate, Shivangi Gangwar, Advocate
Headnote:
Indian Penal Code, 1860, Secs. 363, 366A, 376(2)(n) and Protection of Childrens from Sexual Offences Act, 2012, Sec. 5(i)(l)/6 – Conviction and sentence of the accused-appellant under – In the present case, a minor was subjected to rape not only once but twice by the accused-appellant after alluring her – And keeping her under constant threat – No doubt in the testimony of the victim as well as other witnesses; fully substantiated by the medical report – Appeal dismissed. (Paras 15 to 21)
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Key Points: - The judgment confirms that the evidence (victim testimony, PW1 corroboration, medical report Ext. A-8) substantiates rape of a minor on two occasions and threats to family, supporting conviction under IPC sections 363, 366A, 376(2)(n) and POCSO Secs 5(i)(l)/6 [26000122940019]. - The victim’s age is established as 17 at the time of the incidents; the court notes the victim’s date of birth as 25.07.1998 and that she was a minor on 27.10.2015 and 08.01.2016, making consent irrelevant [26000122940014][26000122940015][26000122940008]. - The court addresses issues around the recording of statements under Section 164 Cr.P.C. before SDM rather than Judicial Magistrate, and questions the propriety of this procedure, but still upholds the conviction on the merits [26000122940012][26000122940013]. - The appellate court finds no error in law or fact in the trial court’s decision and maintains the conviction and sentences; the appeal is dismissed [26000122940020]. - The court references statutory age-determination procedures under Juvenile Justice Rules and emphasizes age determination should follow Rule 12(3) and relevant certificates or medical opinion only if other documents are unavailable [26000122940016] (!) (!) (!) (!) .
What is the sufficiency of evidence to convict under Sections 363, 366A, 376(2)(n) IPC and Section 5(i)(l)/6 POCSO Act?
What is the court’s view on age determination and the relevance of the victim’s age at the time of the incident?
What are the grounds for upholding the conviction and sentence in the appellate review?
JUDGMENT
Lok Pal Singh, J. - Criminal law was set into motion at the instance of PW1 (complainant and sister of the victim) who submitted a report (Ext. A-1) with P.S. Kotwali Gangnahar, Roorkee, District Haridwar on 28.03.2016 at 21:35 hours stating therein, that her sister, who is a minor was enticed away by accused Usman @ Sameer, r/o House No. 657, Banda Road, Roorkee on 11.03.2016, but father of accused did not permit them to enter the house and instead handed them over to the police. The victim was given in the custody of her father before the Magistrate. On her return back to her house, sister of the complainant told that the accused-appellant took her to hotel Maya Palace on 27.10.2015, where he committed rape forcibly with the victim. Again on 08.01.2016, accused took the victim to Hotel Jewels, Civil Lines, Roorkee and committed rape on the victim against her wishes and threatened her that if she dare to disclose anything to her parents or relatives and will disobey him, he will commit murder of her entire family members.
2. On the basis of said report, chik FIR (Ext. A-6) was lodged against the accused in respect of offences punishable under Sections 363, 366A, 376 IPC and the one under Section 3/4 of Protection of Children from Sexual Offences Act (POCSO). The investigation of the case commenced. The I.O. got recorded statement of the victim under Section 164 Cr.P.C. before the Magistrate; got the victim medically examined; arrested the accused and prepared arrest memo thereof, prepared site plan and also took into possession the copy of the school register and transfer certificate. The I.O. also obtained medical report of the accused. After completion of investigation, charge sheet (Ext A-12) was filed against the accused for his trial in respect of selfsame offences.
3. The case was committed to the court of Special Judge (POCSO), Haridwar for trial. Charges were framed against the accused under Sections 363, 366A, 376(2)(n) IPC and Section 5(i)(l) / 6 of POCSO Act. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 (complainant and sister of the victim); PW2 Ms. 'X' (victim) (name withheld); PW3 (mother of the victim); PW4 (father of the victim); PW5 Rakesh Chandra (Manager of hotel Maya Palace); PW6 Smt. Rajni Devi (Principal of Moolraj Girls Inter College); PW7 Sanjay Kumar (Manager of hotel jewels); PW8 Constable Gopal Ram (who prepared the Chick FIR); PW9 Dr. Deepa (who medically examined the victim); PW10 S.I. Pradeep Singh Tomar (I.O) and PW11 S.I. Ranveer Singh. However no witness was examined in defence. In reply to questions posed under Section 313 of Cr.P.C., the accused replied that he is innocent and the prosecution evidence against him is false. Accused further stated that he was implicated in the crime as he belongs to different religion.
4. The trial court, after hearing the prosecution and the defence, convicted the accusedappellant under Sections 363, 366A, 376(2)(n) IPC and Section 5(i)(l) / 6 of POCSO Act. The convictappellant was sentenced to undergo rigorous imprisonment for a period of five years along with a fine of Rs.10,000/- in respect of offence punishable under Section 363 IPC; seven years rigorous imprisonment along with a fine of Rs.10,000/- under Section 366A; ten years rigorous imprisonment along with a fine of Rs.25,000/- under Section 376(2)(n) IPC. Convict-appellant was also sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of Rs.25,000/- under Section 5(i)(l) / 6 of POCSO Act. All the sentences were directed to run concurrently.
5. In her examination-in-chief, the victim stated that I studied upto Class XII in Moolraj Girls Inter College, Ramnagar, Roorkee (District Haridwar). My date of birth is 25.07.1998. Usman @ Sameer was known to me. He used to tease me since 2013. He took me under his influence and established friendship with me. He took me to Hotel Maya Palace on 27.10.2015, situated at Rampur C
