Decided on April 04,2013

RISHIPAL Appellant


- (1.) A complaint was lodged by Shyam Singh on 06.12.1998 in reporting out post Basant Bihar, PS Kotwali, District Dehradun, alleging therein that when informant's daughter Rakhi, aged 15 years, was present at home and informant along with his wife were away, Rishipal (accusedappellant) kidnapped Rakhi. They came to know of the incident when the informant along with his wife returned their home. Ashok and others saw Rishipal taking Rakhi on bicycle. On the basis of said complaint, a first information report as regards offences punishable under Sections 363 and 366 IPC was lodged in PS concerned on 06.12.1998, at 3:00 p.m. After the investigation was completed, a charge-sheet in respect of offences punishable under Sections 363 and 366 IPC was submitted before the Chief Judicial Magistrate, Dehradun, who committed the case to the Court of Sessions. When the trial commenced and prosecution opened it's case, charges in relation to the offences punishable under Sections 363, 366 and 376 IPC were framed against the accused-appellant, who pleaded not guilty and claimed trial. Prosecution examined nine witnesses, namely, PW 1 Shyam Singh, PW 2 Dayaram, PW 3 Rakhi (victim), PW 4 Dr. Lata Bisht, PW 5 Head Constable Chandagi Ram, PW 6 Dr. P.K.Nautiyal, PW 7 Ashok, PW 8 SI R.B. Arya and PW 9 Anil Purohit. Incriminating evidence was put to the accused under Section 313 Cr.P.C., in reply to which, he said that the prosecution witnesses were telling a lie. No evidence was given in defence. After hearing both the sides, the learned Additional Sessions Judge/FTC 5th convicted the accusedappellant Rishipal in relation to the offences to which he was charged and sentenced him appropriately. Aggrieved against the said conviction and sentence, present criminal appeal was preferred.
(2.) Prosecution led the evidence through PW 3 Rakhi (victim), who said that on 04.12.1998, at 12:00 noon, when she was coming back from her school on bicycle, her uncle Dayaram met her and told her to go with Rishipal. Dayaram also said that if she did not go with Rishipal (accused-appellant), then she along with her family members will be killed. Rishipal then took her at his mausi's (aunt's) house. On 05.12.1998, they remained in the house of Rishipal's mausi's daughter. On 06.12.1998, Rishipal committed rape with her in the jungle on the point of knife. On her way back, her father, uncle and police met them in Resham Majri bus stand. She was taken to Basant Vihar Kotwali. She was also taken to women hospital, whereupon she was medically examined. She was studying in class IX in Sanjay Public Junior High School. She was aged 15 years as on the date of incident. She said that her date of birth was 3rd October, 1985. She also said that her statement under Section 164 Cr.P.C. was taken. In her cross-examination, she said that she proceeded to her school on 04.12.1998, at 7:00 a.m. on cycle. The teacher had asked that the students have to go to picnic. On her way back, her uncle Dayaram met her and took her up to Prem Nagar. Dayaram told PW 3 that he has no means of conveyance. The cycle was driven by Dayaram. At Prem Nagar, Rishipal met them. Dayaram asked and insisted PW 3 to go with Rishipal. Dayaram disappeared from there. Rishipal drove the cycle and took her to Doodhli village, which was situated at a distance of 15 kilometers away from Prem Nagar. She kept on wearing the same apparels, till she was apprehended by the police. Accused undressed her when he committed rape with her. Her clothes were stained with blood. Her wearing apparels were also got dirty. The victim was sexually assaulted by the accused-appellant against her will. There is no reason to disbelieve the statement of the prosecutrix (victim).
(3.) The next vital question, which arises for consideration is - what was the age of the victim when the incident took place PW 4 Dr. Lata Bisht examined Rakhi on 07.12.1998, at 1:16 p.m. in the Women's Hospital, Dehradun. No mark of injury was seen on the victim's private part. Hymen was old torn. There was no sign of bleeding. She was having her menstruation period. No opinion about rape could be given. She was referred to radiologist for determination of age and for histopathological examination for ascertaining the presence of spermatozoa. The medical report regarding the vaginal smear for presence of spermatozoa was in the negative. No definite opinion about rape could be given. Age of the girl was about 17 years as on 06.01.1999. The most important witness in this context was PW 9 Anil Purohit, who was posted as clerk in Sanjay Public Inter College, Karvadi, Dehradun. PW 9 said, in his examination-in-chief, that he was working in Sanjay Public Inter College since the year 1993-94. Rakhi d/o Shyam Singh was admitted in this college in July, 1998. PW 9 brought the school register along with him while coming to depose before the court below. According to PW 9, the date of birth of Rakhi, according to school register, was 30.01.1981. PW 9 submitted a photocopy (Ext. Ka-4) of the school register, which was the true copy of the original. In the cross-examination, he said that the date of birth of Rakhi was recorded in their school's register as per the T.C. issued by Kanya Uchch Prathmik Vidyalaya, Badowala. PW 9 denied the suggestion that the date of birth of victim was wrong. PW 9 also said that T.C. of Kanya Uchch Prathmik Vidyalalya, Badowala was issued (by Sanjay Public Inter College) to one Kuldeep Bharadwaj, a receipt of which was obtained by the official of Sanjay Public Inter College. In this way, the date of birth of the victim was established as 30.01.1981. By that analogy, the victim was 16 years 10 months and 4 days old as on the date of incident. The medical report also corroborates the same, in as much as, according to radiologist's opinion she was about 17 years of age. In order to prove offences under Sections 361 and 362 IPC, the age of reckoning is upto 18 years in case of female. In other words, if the female is below 18 years of age, then her consent is immaterial in order to constitute offences punishable under Sections 363 and 366 IPC. In the instant case, it was established that the accused kidnapped victim Rakhi, who was aged 17 years (below 18 years) from the lawful guardianship of her parents. She was kidnapped by the accused appellant with the intention that she will be forced or seduced to illicit intercourse against her will. PW 1 Shyam Singh in his examination-in-chief said that on 04.12.1998, when he along with his wife were away, Rakhi was kidnapped by Rishipal, a complaint (Ext. Ka-1) regarding which incident was lodged. Although PW 1 said that the said report was lodged on the basis of suspicion, but admitted in the cross-examination that his daughter was recovered by the police on 06.12.1998 from the possession of accused Rishipal. His daughter was given in his custody vide paper Ext. Ka-2. Rakhi was aged 15 years when the incident took place, in as much as, his (PW1's younger son Brijesh was 12 years and Rakhi was three years older to Brijesh. Rakhi had gone to school on bicycle when she was kidnapped. Dayaram was his cousin. PW 1 and Dayaram went to search out Rakhi on 06.12.1998. Rakhi and Rishipal met them on road in Resham Mazri. PW 4 Dr. Lata Bisht proved medical report (Ext. Ka-4) and also supplementary report (Ext. Ka-6). She was of the opinion that the victim was approx 17 years old when the incident took place. PW 5 Head Constable was a formal witness. PW 6 Dr. C.K. Nautiyal proved his report (Ext. Ka-9) and x-ray plate (Ext. Ka-1). PW 8 SI R.B. Arya was the investigating officer of the case, who among other things, recovered Rakhi from the custody of accused-appellant Rishipal. PW 8 also proved copy of G.D. (Ext. Ka-12), obtained the medical opinion and submitted charge sheet (Ext. Ka-13). As said earlier, PW 9 Anil Purohit proved School Register, according to which (register), the date of birth of Rakhi was 30.01.1981. ;

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