Umesh Chandra Dhyani, J. -
(1.) TAKING recourse to Section 156(3) Cr.P.C. the criminal law was set into motion at the instance of the victim Jaimati. An application under Section 156(3) Cr.P.C. was moved on 06.11.2006, which was addressed to Judicial Magistrate, Didihat, Pithoragarh. Victim complained that she belonged to Scheduled Caste community and the accused Vikram Singh was a member of higher caste. Accused Vikram Singh committed rape with her in the year 2005, a trial of which was pending before the court concerned. Accused Vikram Singh was released on bail in the said case. In December 2005, when he was released on bail, accused told the victim that he will marry her. He committed sexual intercourse with her several times, as a consequence of which, she became pregnant. Accused gave her false assurance that he will marry her. On 04.10.2006, at 8:00 p.m., accused Vikram Singh entered into the house of the prosecutrix. The accused was accompanied by his father, who was having stick in his hands. Vikram Singh dragged her and put the knife on the neck and slapped her. He used casteist remarks. A complaint was given in PS Thal but no action was taken. Judicial Magistrate, Didihat passed an order on the application of the victim. Consequently, case crimen. 242 of 2006 was lodged in PS Thal, Didihat, Pithoragarh on 07.11.2006, at 1:30 p.m. as regards offences punishable under Sections 323, 504, 506, 452, 376 I.P.C. and Section 3(1)(X) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act.
(2.) AFTER the investigation, a charge sheet (Ext. Ka -7) was submitted regarding the same offences against the accused Vikram Singh in the court of Magistrate having jurisdiction. The case was committed to the Court of Sessions. When the trial began and prosecution opened it's case, charge for the selfsame offences was framed against the accused, who pleaded not guilty and claimed trial. As many as six witnesses, namely, PW 1 Smt. Jaimati (victim), PW 2 Mohan Ram (father of victim), PW 3 Dr. Bharti Rana, PW 4 Constable Girish Chandra, PW 5 Smt. Madhavi Devi and PW 6 D.S. Negi were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C. In reply to the questions, the accused -appellant admitted that he had sexual intercourse with the victim when he was released on bail. He also admitted that yet another case of rape (with the same victim) was pending against him and he was released on bail in that case. He knew that the victim has instituted a case of rape against him. Despite the same, he had sexual intercourse with her. He also admitted that the victim belonged to SC community. She was a co -villager, who resided near to his house. She was an old acquaintance. He admitted that an FIR was lodged by the victim in this regard. He also admitted that the victim conceived after he (accused) had sexual intercourse with her. Accused also admitted that a chik FIR was lodged against him on the basis of directions of Judicial Magistrate, Didihat. Accused also admitted that the victim is maintaining the child, who was borne after his (accused -appellant's) cohabitation with the victim. Accused conceded that he promised to marry the victim but since he got late, therefore, the first information report was lodged. After hearing both the sides and after considering the evidence on record, the accused Vikram Singh was held guilty of the offences under Sections 376, 323, 504, 506 I.P.C. along with the offences punishable under Section 3(1)(XII) of Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act. He was sentenced appropriately on each count. While convicting the accused for the offence punishable under Section 376 I.P.C., he was sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of Rs. 25,000/ -. Aggrieved against the said conviction and sentence, present criminal appeal was preferred.
(3.) LEARNED Amicus Curiae submitted that there is delay in lodging the first information report. The facts in the backdrop of these incidents were peculiar. Accused -appellant committed rape with the victim. Convict -accused was being tried. He was enlarged on bail. He came back to his village and had sexual intercourse with the victim. Accused made false utterances and promised the victim to marry, but did not do so. He had sexual intercourse with the victim again, as a consequence of which, the victim got pregnant and gave birth to a child. Accused -appellant has admitted in statement under Section 313 Cr.P.C. that yes, he had sexual intercourse with the victim. He wanted to marry her, but could not because he got late. It is a case of confession and avoidance. The plea taken by the accused -appellant was that it was with the consent of the victim, but admitted that he made promises to victim to marry her. It is clear from the prosecution story as well as the evidence on record that the accused -appellant adopted deceitful means to procure the consent, if any, of the victim.;