Dharam Veer, J.@mdashThis appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 16.11.2005 passed by the Additional Sessions Judge/7th FTC, Dehradun in Sessions Trial No. 164/2001, State v. Inder Singh and Anr., whereby the learned Additional Sessions Judge has convicted the appellant/accused Inder Singh under Sections 363, 366 and 376 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo seven years'' R.I. u/s 363 IPC and ten years'' R.I. u/s 366 IPC as well as ten years'' R.I. u/s 376 IPC. Fine of Rs. 10,000/- was also imposed upon the appellant/accused and in default, he was directed to undergo one year''s additional imprisonment. It was also directed that all the sentences shall run concurrently. It was further directed that Rs. 5,000/- shall be paid to the victim Km. Phullo Kumari out of the amount of fine of Rs. 10,000/-. However, co-accused Amrit was acquitted by the trial court for the charges levelled against him under Sections 363 and 366 IPC.
2. In brief, the prosecution case is that PW1 Jay Nath Kumar lodged an FIR Ex. Ka-1 on 10.8.2001 at 8.10 pm at police station IDPL, Rishikesh, District Dehradun with the averment that the appellant/accused Inder Singh had taken away his sister Km. Phullo Kumari, aged 12 years, with himself by enticing her at 9 am on that day i.e. 10.8.2001. On the basis of this FIR, chick FIR Ex. Ka-2 was prepared by Head Constable Shiv Kumar Singh (PW4) on the same day. Necessary entries were made by him in the GD. Copy of GD is Ex. Ka-3. Investigation of this case was entrusted to S.I. Ahivaran Singh (PW5). Lateron investigation was transferred to S.I. Sunder Lal (PW7). Victim Km. Phullo Kumari (PW2) was recovered on 12.8.2001 at about 3 pm at Natraj Chauraha by S.I. Ahivaran Singh and fard of recovery Ex. Ka-5 was prepared. Appellant/accused Inder Singh and the co- accused Amrit (acquitted by the trial court) were arrested on the same day and arrest memo Ex. Ka-4 was prepared. Entry in this regard was also made in the GD, copy of which is Ex. Ka-6. Victim Km. Phullo Kumari was medically examined at Govt. Hospital, Rishikesh by Dr. Sushmita Vemra (PW6) on the same day i.e. on 12.8.2001 at 5 pm, who also prepared the medical report Ex. Ka-8. Supplementary report Ex. Ka-9 was also prepared by her. Victim Km. Phullo Kumari was given in the supardgi of her mother Kaushlya Devi (PW3) and her brother Jay Nath Kumar (PW1) and the supardginama Ex. Ka-7 was prepared. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-11. Attested copies of application for admission Ex. Ka-12 and admission registers Ex. Ka-13, Ka-14 & Ka-15 and school leaving certificate Ex. Ka-16 as well as date of birth certificate Ex. 1 and leaving certificate Ex. 2 have been produced to prove the date of birth of victim Km. Phullo Kumari, according to which her date of birth is 8.4.1989. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka- 10 against the appellant/accused and the co-accused (acquitted by the trial court).
3. Learned Judicial Magistrate 2nd, after giving the necessary copies of the documents to the appellant- accused and the co-accused as prescribed u/s 207 Cr.P.C., committed the case to the Court of Sessions on 8.10.2001.
4. On 9.11.2001, learned Sessions Judge framed the charges against the appellant/accused Inder Singh under Sections 363, 366 & 376 IPC and the co-accused Amrit under Sections 363 and 366 IPC. The charges were read over and explained to the appellant-accused and the co- accused (acquitted by the trial court), who pleaded not guilty and claimed to be tried. Thereafter the case was transferred to Additional Sessions Judge/7th FTC, Dehradun for its disposal according to law. 5. To prove its case, the prosecution has examined PW1 Jay Nath Kumar, the complainant; PW2 Km. Phullo Kumari, the victim; PW3 Kaushlya Devi, mother of the victim; PW4 Head Constable Shiv Kumar Singh, who prepared the chick FIR and made necessary entries in the GD; PW5 S.I. Ahivaran Singh, the I.O. of the case; PW6 Dr. Sushmita Verma, who medically examined the victim Km. Phullo Kumari and prepared the medical report and the supplementary report; PW7 S.I. Sunder Lal, who subsequently took over the investigation from PW5 S.I. Ahivaran Singh; PW8 Devendra Singh Sajwan, Clerk, Saraswati Vidya Niketan Jr. High School, Rishikesh and PW9 Smt. Krishna Devi, Principal In-charge, Primary School, Pashulok, Rishikesh to prove the age and date of birth of victim Km. Phullo Kumari from the records of their respective schools.
6. Thereafter, the statements of the appellant/accused and co-accused (acquitted by the trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence were put to the appellant/accused and the co-accused in question form, who denied the allegations made against them. However, they did not produce any documentary or oral evidence in the defence.
7. After hearing learned Counsel for the parties and after appreciating the evidence on record, the learned Additional Sessions Judge/7th FTC, Dehradun vide his judgment and order dated 16.11.2005 convicted and sentenced to the appellant/accused as discussed above. Co-accused Amrit was acquitted of the charges under Sections 363/366 IPC. Against the aforesaid judgment and order dated 16.11.2005, the appellant/accused has preferred the present appeal.
8. I have heard learned Amicus Curiae for the appellant/accused and learned Brief Holder for the State and have carefully perused the entire material available on the record.
9. Before any further discussion, it would be pertinent to reproduce the medical report Ex. Ka-8 of victim Km. Phullo Kumari who was medically examined by PW6 Dr. Sushmita Verma on 12.8.2001 at 5 pm and the same is reproduced as under:
On Examination : There is no evidence of any fresh injury at any place of the body, p/v - ut Normal Size, fx - clear molaile, admits 2 fingers easily. Normal discharge.
Opinion : No opinion can be given.
Adv. : Referred to Radiologist, Doon Hospital Dehradun for age of the pt.
X-ray - wrist, elbow
Referred to Pathologist, Doon Hospital for vaginal smears examination.
10. PW6 Dr. Sushmita Verma also prepared the supplementary report Ex. Ka-9 on the basis of the report of the Radiologist and the same is reproduced as under:
Radiologist report : shows age < 16 years.
Pathological report : show no spermatozoa.
Opinion : According to the X-ray report and pathological report age of the pt is less than 16 years and no evidence of rape is found.
11. To prove the abovementioned medical report Ex. Ka- 8 and supplementary report Ex. Ka-9, prosecution has examined PW6 Dr. Sushmita Verma, who has proved the same. She has further stated in her cross-examination that there was no sign of rape and the victim was habitual to intercourse.
12. To further prove its case, the prosecution has examined PW1 Jay Nath Kumar, the complainant who has stated that on 10.8.2001, he and his mother Kaushlya Devi (PW3) had gone out of the house. His sister Km. Phullo Kumari (PW2) was alone in the house. At that time, her age was about 12 years. Appellant/accused Inder Singh was living adjacent to his house. Govind, son of Munshi of the contractor, had told him that his sister had gone out of the house. This witness has proved the report lodged by him as Ex. Ka-1.
13. PW2 victim Km. Phullo Kumari, whose statement was recorded on 1.2.2002, has stated that her age was 12 years and 9 months. She has further stated that on 10.8.2001, she was alone at her house. Her mother and her brother had gone outside the house for the labour work. Her father had gone to Bihar. Radha, Laxmi, Ashok, Lachhi and Gauri were telling her to go from there along with the appellant/accused Inder. They were also telling that they would marry her with Inder. The appellant/accused Inder was living near her hut. On 10.8.2001 at about 8-8.30 am, contractor Basant Lal had come. When she asked the contractor Basant Lal that they were telling her to go with Inder, then he said that they were rightly telling so and asked her to go with the appellant/accused. Thereafter at 9-9.15 am, Laxmi, Gauri, Radha and the appellant/accused Inder came to her and forcibly taken her out of the house. Appellant/accused Inder forcibly made her sit on the bicycle. When she raised the alarm, he shut her mouth. She was taken to Rishikesh bus stand, where his sister-in-law was sitting. Inder asked his sister-in-law to drop her at Saharapur and thereafter he returned from there. His sister-in-law dropped her at Saharanpur. From Saharanpur bus stand, Amritpal took her to his village in Haryana. She has further stated that 3-4 days before 10.8.2001 and even one day before that day, the appellant/accused Inder had committed rape on her. She was medically examined at Rishikesh hospital. This witness was cross-examined at length by the defence counsel but nothing has come in her deposition which may create any doubt about it.
14. PW3 Kaushlya Devi, mother of the victim, has also corroborated the statement of Km. Phullo Kumari (PW2).
15. PW4 Shiv Kumar Singh has stated that on 10.8.2001, he was posted as Head Constable at IDPL chowki. On 10.8.2001 he had prepared the chick FIR Ex. Ka-2 on the basis of the FIR Ex. Ka-1 lodged by Jay Nath Kumar (PW1). He also made necessary entries in the GD, copy of which is Ex. Ka-3.
16. PW5 Ahivaran Singh has stated that on 10.8.2001, he was posted as S.I. in Rishikesh. The investigation of this case was entrusted to him on 11.8.2001. On the information of mukhbir, appellant/accused Inder Singh and co-accused Amrit (acquitted by the trial court) were arrested on 12.8.2001 and he prepared memo of arrest Ex. Ka-4. Km. Phullo Kumari was also recovered along with the appellant/accused Inder Singh and the co- accused Amrit (acquitted by the trial court). They were brought to the police station and entries thereof was also made in the GD by Constable Clerk Nand Kishore, copy of which is Ex. Ka-6. Km. Phullo Kumari was given in the supardgi of her mother Kaushlya Devi and brother Jay Nath Kumar and supardginama Ex. Ka-7 was prepared. He has further stated that he received the supplementary medical report (Ex. Ka-9) on 18.8.2001, wherein the age of Phullo Kumari was mentioned as less than 16 years. He prepared the site plan Ex. Ka-11 after inspecting the place of occurrence. Thereafter he recorded the statements of the witnesses. After that investigation was transferred to S.I. Sunder Lal (PW7).
17. PW7 S.I. Sunder Lal has stated that investigation of this case was transferred to him on 31.8.2001, who after completing the investigation, filed the chargesheet Ex. Ka- 10 on 12.9.2001 against the appellant/accused Inder Singh and the co-accused Amrit (acquitted by the trial court).
18. PW8 Devendra Singh Sajvan, Clerk, Saraswati Vidya Niketan Jr. High School, Rishikesh, who has filed the school leaving certificate of Km. Phullo Kumari and has further stated that according to that certificate her date of birth is 8.4.1989. He has also filed copy of the application for admission of the victim Km. Phullo Kumari. He has also filed copy of the admission register.
19. PW9 Smt. Krishna Devi, Principal In-charge, Primary School, Pashulok, Rishikesh has filed copies of the admission register and school leaving certificate to prove the date birth of victim Km. Phullo Kumari.
20. Thereafter, the statements of the appellant/accused and co-accused (acquitted by the trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence were put to the appellant/accused and the co-accused in question form, who denied the allegations made against them. However, they did not produce any documentary or oral evidence in the defence.
21. Learned Amicus Curiae for the appellant/accused submitted that he does not want to challenge the conviction of the appellant/accused as he has stated that conviction of the appellant/accused Inder Singh is justified on the basis of the evidence discussed above. I find substance in the submission of learned Amicus Curiae due to the reason that victim Km. Phullo Kumari has stated in her deposition that her age at the time of incident was about 12 years. On 10.8.2001, she was alone at her house. Her mother and her brother had gone outside the house for the labour work. Her father was in Bihar. Radha, Laxmi, Ashok, Lachhi and Gauri were telling her to go from there along with the appellant/accused Inder Singh. They were also telling that they would marry her with the appellant/accused. The appellant/accused Inder Singh was living near her hut. On 10.8.2001 at about 8-8.30 am, contractor Basant Lal had come. When she asked him that they were telling her to go with the appellant/accused, then he said that they were rightly telling so and asked her to go with the appellant/accused. Thereafter at 9-9.15 am on that day, Laxmi, Gauri, Radha and the appellant/accused Inder Singh came to her and forcibly taken her out of the house. Appellant/accused Inder Singh forcibly made her sit on the bicycle. When she raised the alarm, he shut her mouth. She was taken to Rishikesh bus stand, where his sister-in-law was sitting. Inder Singh asked his sister-in- law to drop her at Saharapur and thereafter he returned from there. His sister-in-law dropped her at Saharanpur. From Saharanpur bus stand, Amritpal took her to his village in Haryana. She has further stated that 3-4 days before 10.8.2001 and even one day before that day, the appellant/accused Inder Singh had committed rape on her. She was medically examined at Rishikesh hospital. This witness could not be shaken in her cross- examination.
22. Statement of victim Km. Phullo Kumari stands corroborated by the deposition of complainant Jan Nath Kumar (PW1) and her mother Kaushlya Devi (PW3). Furthermore, she was a minor on the date of the incident which stands proved by the medical report Ex. Ka-8 and supplementary report Ex. Ka-9 and the statement of PW6 Dr. Sushmita Verma, who had medically examined the victim Phullo Kumari and prepared the aforesaid medical reports, according to which the victim was less than 16 years at the time of her medical examination. This fact has been further proved by the deposition of PW8 Devendra Singh Sajvan and PW9 Smt. Krishna Devi, who has proved that according to the records of their respective schools, the date of birth of victim Km. Phullo Kumari was 8.4.1989. Thus as per the records of the schools, the victim Km. Phullo Kumari was 12 years and 4 months old at the time of incident and as such she was a minor at the time of incident. Thus, the prosecution has proved the case against the appellant/accused Inder Singh beyond reasonable doubt for the offence punishable under Sections 363, 366 and 376 IPC and the impugned judgment and order dated 16.11.2005 passed by the trial court is correct and justified.
23. Learned Amicus Curiae for the appellant/accused further submitted that though he is not challenging the conviction of the appellant/accused as the same is justified but the sentence awarded to the appellant/accused is very excessive in view of the facts and circumstances of the case discussed above. He has further submitted that the appellant/accused is the only earning member in his family and he is in jail for the last more than 8 years and has also deposited the amount of fine i.e. Rs. 10,000/- as per the order of trial court. He has further submitted that in these circumstances the period of sentence awarded the appellant/accused may be reduced to the period the appellant/accused has already undergone.
24. Learned Brief Holder for the State has filed a letter dated 5.9.2009 received from the Superintendent, District Jail, Dehradun, wherein it has been stated that up to 4.9.2009, the appellant/accused has served out 8 years and 22 days out of 10 years'' of sentence awarded to him by the trail court in the said crime and he has also deposited the amount of fine of Rs. 10,000/-. Thus, as on date, the appellant/accused has served out 8 years, 1 month and 9 days.
25. In the facts and circumstances of the case, I deem it proper that ends of justice would be met if the sentence of 10 years awarded to the appellant/accused is reduced to the aforesaid period that he has already undergone. Prayer to this extent is allowed.
26. For the reasons recorded above, the appeal is partly allowed. The conviction of the appellant/accused Inder Singh under Sections 363, 366 and 376 IPC is hereby upheld. R.I. of seven years u/s 363 IPC, R.I. of 10 years each u/s 366 and 376 IPC, which were ordered to run concurrently, is reduced to the period he has already undergone i.e. 8 years, 1 month and 9 days. The amount of fine i.e. Rs. 10,000/- has already been deposited by the appellant/accused. The impugned judgment and order dated 16.11.2005 passed by the Additional Sessions Judge/7th FTC, Dehradun in Sessions Trial No. 164/2001, State v. Inder Singh and Anr., convicting the appellant/accused Inder Singh under Sections 363, 366 and 376 IPC and sentencing him to undergo seven years'' R.I. u/s 363 IPC and ten years'' R.I. u/s 366 IPC as well as ten years'' R.I. u/s 376 IPC is modified to the extent indicated above. The appellant is in jail. He shall be released from the jail forthwith unless required in any other case.
27. Let a copy of this order be sent to the trial court for compliance of the same. Let the lower court record be also sent back.
