MADHAV CHAUDHARY Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This appeal has been preferred by the convict through the Incharge Jailor, District Jail, Chamoli assailing the judgment and order dtd. 23/24/12/2014 passed by Special Sessions Judge, Rudraprayag in Special Sessions Trial No.06/2014, whereby the appellant has been convicted for the offence punishable under Sec. 376 of the Indian Penal Code (for short, IPC) read with Sec. 3/4 of Prevention of Children from Sexual Offences Act (for short, POCSO) and Sec. 363 of IPC and has been sentenced to rigorous imprisonment for a period of seven years along with a fine of Rs.5,000.00 u/s 376 IPC r/w 3/4 of POCSO Act and three years R.I. along with a fine of Rs.1,000.00 u/s 363 IPC. Both the sentences have been directed to run concurrently. However, the accused/appellant has been acquitted of the charge of offence punishable under Sec. 3(2)(V) of The Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989.

(2.) Prosecution story, in brief, is that on 31/5/2014 an F.I.R. was lodged by the complainant/father of the prosecutrix at P.S. Rudraprayag, District Rudraprayag stating that on 30/5/2014 at about 03:00 PM his daughter, aged 15 years, was alone in the house. Accused/appellant, who used to come frequently in his house, enticed away his daughter. They made search of his daughter but all in vain. On the basis of report, case crime no. 15 of 2014 was registered under Sec. 363 of IPC against the accused/appellant. Investigation of the case was taken up by the Sub Inspector Sushma Rawat who during investigation, recorded statements of the witnesses, inspected the place of occurrence and prepared the site plan, arrested the accused/appellant and prepared the arrest memo. On the same day i.e. on 31/5/2014 07:50 PM, medical examination of the prosecutrix was conducted by PW-4 Dr. Ashtha Bhandari at Government Hospital, Rudraprayag. The doctor in medical examination found no mark of internal or external injury and no pain during examination. The victim was referred for radiologist opinion to Base Hospital Srinagar for age determination. Three vaginal smear slides were prepared and sent for examination. Supplementary report was also prepared in which the doctor recorded that no spermatozoa seen in vaginal smear slides. During the course of investigation, the Investigating Officer also got recorded the statement of the victim u/s 164 of The Code of Criminal Procedure (for short, Cr.P.C.) and also collected documents relating to age of the victim. On completion of investigation, the I.O. filed the charge-sheet against the accused/appellant u/s 363, 376 IPC read with Sec. 3/4 of POCSO Act and Sec. 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Thereafter, charge was framed against the accused/appellant under the aforesaid Ss. to which the accused/appellant pleaded not guilty and claimed to be tried. On denial of guilt, trial begun. The prosecution, in order to prove its case, got examined as many as thirteen prosecution witnesses viz. PW1 father of victim, PW2 mother of victim, PW3 Victim, PW4 Dr. Ashtha Bhandari, PW5 Upendra Singh, PW6 Shakti Prasad Uniyal, PW7 maternal uncle of victim, PW8 Sub Inspector Rajendra Prasad Gaur, PW9 Constable Dheeraj Devradi, PW10 Sub Inspector Sushma Rawat, PW11 Dr. Neeraj Kumar, PW12 Woman Constable Beena Bamola and PW13 Swantra Kumar Singh. Thereafter, statement of the accused/appellant was recorded under Sec. 313 of Cr.P.C. In reply, he denied the allegations made against him. In defence, he got examined DW1 Dr.Atul Kumar. Learned Special Sessions Judge, Rudraprayag, after considering the statement recorded under Sec. 164 Cr.P.C., statement of prosecution witnesses, the statements of the accused/ appellant under Sec. 313 Cr.P.C., the medical report of the victim as well as the statement of the doctor, convicted the accused/appellant and awarded punishment as mentioned above.

(3.) PW1 is father of victim. In his deposition, he has reiterated the contents of the FIR. Besides that, he has also stated that after lodging the FIR, police has arrested the accused/appellant and recovered the girl and then he came to know that the accused/appellant has committed rape on her.