Advocates:
['GEETA ARYA AMICUS CURIAE', '', 'Rajendra Aryaamicus curiae', 'SHRUTI JOSHI AMICUS CURIAE', 'G A']

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No. 11 of 2018

Roshan Singh Negi

......... Appellant

Vs.

State of Uttarakhand

…....Respondent

Present:

Mr. Rajendra Arya, Amicus Curiae.

Mr. Lalit Miglani, A.G.A. for the State.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

Present appeal is preferred against the judgment

and order dated 19.01.2016, passed in Sessions Trial No. 32

of 2015, State vs. Roshan Singh Negi, by the Additional

District and Sessions Judge, Kotdwar, District Pauri

Garhwal. By the impugned judgment and order, the

appellant has been convicted under Sections 376 (l) IPC and

sentenced to undergo rigorous imprisonment for a period of

ten year with a fine of Rs.2000/- In default of payment of

fine, to undergo simple imprisonment for a period of two

months.

2.

Briefly stated, the facts are as hereunder:-

The victim in the instant case is a mentally

retarded woman. At the time of incident, she was 39 years of

age. She was staying in the village alongwith her aunt. Her

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brother was working in Chandigarh. Her mother was unwell,

therefore, she used to visit her son in Chandigarh. The

mother of the victim noticed that the victim is pregnant. She

inquired as to whose child is she carrying. To it, the victim

told that the appellant forcibly raped her. The mother and

the aunt of the victim informed this fact to the brother of the

victim, who was staying in Chandigarh. He lodged an FIR

Ex. A1 on 25.07.2015 at the concerned Revenue Police

Station. A Crime No. 2 of 2015 was lodged against the

appellant. On 10.08.2015, the victim was medically

examined. She was 32 weeks pregnant then. She was

referred for medical treatment at the higher center. At the

time of medical examination, the foetus had already died.

The victim was then admitted at Himalayan Hospital,

Dehradun. She was admitted on 13.08.2015and discharged

on 16.08.2015. During this period, the Investigating Officer

(for short, “the IO”) also tried to get the scientific evidence.

When the hospital authorities were not ready to take

samples for Deoxyribonucleic Acid (“DNA”) examination. The

IO approached the concerned court. The concerned court by

communication Ex. A4 and A7 requested the concerned

medical authorities to take samples for DNA examination of

the foetus and the appellant respectively. Such samples

were taken. Forensic Science Laboratory (“FSL”) report Ex.

A14 concluded that the appellant is biological father of the

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foetus and the victim is biological mother of the foetus. The

Investigating Officer also prepared the site plan. The victim

was also examined under Section 164 of the Code of

Criminal Procedure, 1973 (for short, “the Code”) on

02.09.2015. After investigation, charge sheet Ex. A12 was

submitted against the appellant. On 24.11.2015, charge

under Section 376 and 506 IPC were framed against the

appellant.

3.

In order to prove its case, prosecution examined

seven witnesses, namely, PW1, brother of the victim, PW2

the victim, PW3 aunt of the victim, PW4 Sub Inspector,

Vinod Kumar, PW5 Dr. Malti Yadav, PW6 Inspector Chandra

Mohan Joshi and PW7 Dr. Subhash Kumar.

4.

The appellant was examined under Section 313 of

the Code. According to him, the witnesses have given a false

evidence against him. In order to grab his property, he has

been falsely implicated in the case.

5.

Learned court below, after hearing the parties, by

the impugned judgment and order, convicted and sentenced

the appellant, as stated hereinbefore. Aggrieved by it, the

appeal is preferred.

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6.

Heard learned counsel for the parties and perused

the record.

7.

Learned Amicus Curiae would submit following

two points in his statement:-

(i)

FIR is delayed and;

(ii)

The relationship between the appellant and

the victim were consensual.

8.

It is submit