Dismissed

Roshan Singh Negi v. State Of Uttarakhand

Uttarakhand HC8 Dec 2021CRJA/11/2018

Case brief

AI extract

What is this about?

This appeal in a rape case involving a mentally retarded victim concerned the admissibility of testimony without an oath and the propriety of not framing a specific charge under Section 376(2)(l) IPC. The Criminal Bench upheld the conviction, relying on the victim's consistent statement, corroborative testimony, and DNA evidence, concluding that the procedural irregularities did not cause a failur

What did the court decide?

The Criminal Jail Appeal was dismissed; the conviction and sentence of the appellant were affirmed.

Roshan Singh Negi Vs State Of Uttarakhand — Criminal Trial and Appeal | Uttarakhand HC (2021)

¶1

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

¶2

Criminal Jail Appeal No. 11 of 2018

¶3

Roshan Singh Negi

¶4

......... Appellant

¶5

Vs. State of Uttarakhand …....Respondent

¶6

Present:

¶7

Mr. Rajendra Arya, Amicus Curiae . Mr. Lalit Miglani, A.G.A. for the State.

¶8

JUDGMENT

¶9

Hon’ble Ravindra Maithani, J. (Oral)

¶10

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.

¶11

Briefly stated, the facts are as hereunder:-

¶12

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

¶13

¶14

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

¶15

¶16

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.

¶17

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.

¶18

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.

¶19

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.

¶20

¶21

Heard learned counsel for the parties and perused the record.

¶22

Learned Amicus Curiae would submit following

¶23

two points in his statement:-

¶24

(i) FIR is delayed and;

¶25

(ii) The relationship between the appellant and the victim were consensual.

¶26

It is submitted that, had the victim been raped by the appellant, the victim would have at least complained about it to her mother or aunt or any other person in the village. But, she maintained silence for a long period and after six months revealed it to her mother, which doubts the credibility of the statements of the victim. Thereafter, FIR has been lodged which is much delayed and it doubts the prosecution case.

¶27

It is also submitted by learned Amicus Curiae that, in fact, in her statement recorded under Section 164 of the Code, the victim has told that the appellant would brought her “Roti”, tobacco and mangoes. On the basis of this statement, it is submitted that it reflects as if a relationship between the victim and the appellant were consensual.

¶28

¶29

On the other hand, learned State counsel would submit that the statement of the victim proves the case against the appellant. The victim has categorically stated that it is the appellant, who raped her. The victim is mentally retarded woman. She is though capable to understand things, but she is mentally retarded. Other prosecution witnesses have also supported the prosecution case. Learned State counsel would submit that in the instant case, the scientific evidence concludes the guilt of the appellant. The DNA examination has established that the appellant was biological father and the victim was biological mother of the foetus.

¶30

In the instant case, the FIR was lodged by the brother of the victim, who has been examined as PW1. According to him, his sister is mentally retarded. This witness was on the job in Chandigarh. The victim was staying in the village along with her aunt. Since the victim was mentally retarded, she was not married. She used to do all household works. She would go in forest with the animals for grazing. According to this witness, on 25.07.2015, he was in the village when he was told by his mother and aunt that the appellant raped the victim forcibly and he did it twice, once in the shrubs and second time in her house. When the mother of the victim noticed her pregnancy, she inquired, it is thereafter, the victim revealed

¶31

¶32

that the appellant raped her. The appellant also threatened the victim to life, in case, she would reveal the incident to anyone. This witness has also stated that, in fact, the appellant is the person with criminal antecedents. He has been in jail on various occasions in the case of molestation.

¶33

PW1 the brother of the victim would also state that a disability certificate Ex. A2 of the victim. He also states that the victim was examined in the court during investigation and she put her thumb impression on it. He also stated about the DNA examination of the foetus.

¶34

PW2 is the victim. Admittedly, the victim is mentally retarded. The court questioned her generally. Though, the questions and answers as such have not been recorded, but the court has observed that the victim is mentally retarded and she is not mentally fit, but still court recorded her statement. In her examination, PW2 the victim identified the appellant and named him. According to her, once the appellant muffled her mouth, pulled her in the shrubs and did galat kaam with her. Once again, according to PW2, the victim, the appellant did galat kaam with this witness in her house and due to this galat kaam, she became pregnant. This witness has also stated that she has given statement as recorded under Section 164 of the Code.

¶35

¶36

PW3 the aunt of the victim has corroborated the statements of PW1, the brother of the victim and PW2 the victim. She has categorically told that the mother of the victim and this witness noticed that the victim is pregnant. On inquiry made by them, the victim told them that it is the appellant, the son of Sadhu, who raped her twice and threatened her to life, in case, she would reveal it to anyone. According to PW3, the aunt of the victim, the victim was sent to Dehradun Hospital, where her foetus was removed, which was dead.

¶37

PW4 Vinod Kumar is the Investigating Officer, he has stated about the steps which he has taken during the course of investigation. PW4 Vinod Kumar applied to the court for taking DNA samples by the Hospital. Based on which, according to this witness, the court concerned, requested the medical authorities to take the samples for DNA examination. Samples were so taken and deposited under seal and signatures in the FSL. The victim was examined under Section 164 of the Code. Site plan was prepared and after completing investigation, this witness submitted charge sheet Ex. A12. This witness has also proved the FSL report Exs. A13, A14 and A15.

¶38

¶39

PW5 Dr. Malti Yadav medically examined the victim on 10.08.2015. According to her, the victim was anaemic She was mentally retarded and she was pregnant for 32 weeks. The foetus was dead. Therefore, this witness referred the victim to higher center. She proved the medical examination report Ex. A16.

¶40

PW6 Chandra Mohan Joshi wrote the chik FIR and made entries in the General Diary. He also proved these documents.

¶41

PW 7 Dr. Subhash Kumar took the DNA samples of the appellant, sealed it and handed over to the Police. He also took the DNA samples of the victim. He proved these documents.

¶42

The appellant has been convicted under Section 376 (2) (l) IPC. The victim is mentally retarded. The victim has not been administered oath. What would be its implication? How to appreciate the evidence of the victim? First and foremost, it has to be examined.

¶43

Section 118 of the Indian Evidence Act, 1872 (for short, “the Evidence Act”), makes provisions as to who may testify. This Section is as hereunder:-

¶44

¶45

“ 118. Who may testify. –– All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

¶46

Explanation. –– A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.”

¶47

The explanation appended to Section 118 of the Evidence Act, makes it abundantly clear that in fact a lunatic would also be a competent witness unless he is prevented by his lunacy from understanding the questions put to him. Definitely in such cases, it would depend upon the person who is a lunatic.

¶48

The provision of oath is given under the Oaths Act, 1969 (for short, “the Act”). It is administered under Section 4 of the Act. Section 7 of the Act, makes the provision in case oath is not administered. According to it, the evidence which is not on oath, does not become in admissible. This Section reads as hereunder:-

¶49

“ 7. Proceedings and evidence no invalidated by omission of oath or irregularity .- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceedings or render inadmissible any evidence whatever, in or in respect of which such omission,

¶50

¶51

substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”

¶52

In the case of Sidhapal Kamala Yadav Vs. State of Maharashtra, (2009) 1 SCC 124, the Hon’ble Supreme Court observed that “there are four kinds of persons who may be said to be non compos mentis (not of sound mind) i.e. (1) an idiot; (2) one made non compos by illness; (3) a lunatic or a mad man; and (4) one who is drunk. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like (see Archbold's Criminal Pleadings, Evidence and Practice, 35th Edn., pp. 3132; Russell on Crimes and Misdemeanors, 12th Edn., Vol. 1, p. 105; 1 Hale's Pleas of the Crown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder (see 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason (see Russell, 12th Edn., Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity.”

¶53

¶54

In the case of Tulshidas Kanolkar Vs. State of Goa, (2003) 8 SCC 590, the Hon’ble Supreme Court considered the evidence of the mentally retarded victim of rape and observed that “they asked the victim as to who was responsible for her pregnancy. She in her own way pointed out accusing fingers at the appellant and said that on some pretext or the other, he ravished her. When this shattering news was conveyed to the parents of the victim, they questioned the appellant. It is on record that some money was offered to them by the mother of the appellant to have termination of pregnancy.”

¶55

In the case of Rameshwar Vs. The State of Rajasthan, AIR 1952 SC 54, the Hon’ble Supreme Court observed that the main purpose of administering oath to render persons who give false evidence liable to prosecution and the subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth. Omission to take the oath does not affect the admissibility of the evidence.

¶56

A lunatic is not incompetent to testify. What is important is that his level of understanding has to be assessed so as to ascertain his level of understanding the

¶57

¶58

questions put to him and giving rationale answer. Merely because oath has not been administered, as stated, does not make evidence inadmissible in view of Section 7 of the Act. In view of this settled legal position, first and foremost, it will be examined as to whether the victim was able to understand the questions put to her and answer them rationally.

¶59

The victim was examined during investigation under Section 164 of the Code. In her statement given under Section 164 of the Code, she has stated that the appellant did galat kaam on two occasions, once in the shrubs and once again in her house. He had muffled her mouth. In her examination in the court, when she was questioned to assess the level of understanding, the court has observed that she is not able to reply some of the questions. The court has not observed that the victim at all is not able to understand the questions put to her. In fact, a certificate of mental retardation given for Government benefits to the victim reveals that she was 50% mentally retarded and it was assessed as moderate. There is another level below it, which is mild. There are two levels above it which are severe and profound. This certificate itself reveals that the victim was on the lower side of mental retarded people. She was in the moderate category. The court has observed that she was able to understand questions, but she was not able to

¶60

¶61

understand some of the questions. It establishes that, in fact, the victim was able to understand the questions and answers. This is, in fact, the factual analysis and it also depends upon the question that might be asked from such mentally retarded person.

¶62

Here is a case of rape. The victim, a woman of 39 years of age, living all alone in her village with her aunt tells that she was raped. She became pregnant. In the court also, the victim is categorical that she was raped twice by the appellant. Once in the forest when the appellant muffled her mouth and pulled her in the shrubs and second time, according to PW2 the victim, she was raped by the appellant in her own house. The victim was consistent in her statement recorded under Section 164 of the Code also. She has stated that she was raped twice by the appellant. She is not able to tell the dates, it makes no difference. Perhaps, she could not remember it. She is mentally retarded. She may not perhaps be able to understand the details with regard to date and time but, what had happened to her was not something usual. Something unusual had happened to her. She did remember it. She did remember it precisely. She did tell that twice it was done. Her statement inspires great confidence.

¶63

In fact, the victim was not able to understand the consequences of the act which was done to her. Unaware of

¶64

¶65

the consequences of the act, still staying in the family without complaining it to anyone. It is only when her mother noticed her pregnancy that she revealed as to what had happened to her. There were three women in the house, the victim, her mother and her aunt. Her mother was a Tuberculosis patient. When the PW1 brother of the victim came to his village, he was told by his mother and aunt, as to what had happened to the victim. It is thereafter he lodged the FIR. The victim was already pregnant. On 10.08.2015, when she was examined, eight months foetus was found in her womb.

¶66

The statement of PW2 victim finds corroboration from the statement of PW3, her aunt and statement of PW1 her brother. The statements of these witnesses are reliable and trustworthy. In fact, in the instant case, the statement of PW2 the victim without any corroboration may be basis for conviction.

¶67

An argument has been raised with regard to the consensual sex. Merely because, the victim has stated in her statement recorded under Section 164 of the Code that the appellant would bring her roti, tobacco and mangoes, it cannot be said that the act was consensual.

¶68

¶69

Section 114A of the Evidence Act, presumes absence of consent in such acts. This Section is as

¶70

hereunder:-

¶71

“114A. Presumption as to absence of consent in

¶72

certain prosecution for rape. ––In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of subsection (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

¶73

Explanation.–– In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860).”

¶74

In the instant case, the appellant has been charged under Section 376 IPC The charge states that he committed rape on the victim. It is not categorically stated that the victim was mentally retarded. But, the victim has been examined in the court as PW2 and the court has observed that she is mentally retarded. The victim has been cross examined by the prosecution. She stood the test of cross examination. She has replied the answers in a most rational manner. She categorically denied that she established relations with the appellant willingly. She denied for consent.

¶75

¶76

The appellant has been convicted under Section 376 (l) IPC. There is no Section as 376 (l) in IPC. It is, in fact, Section 376 sub Section (2) (l) IPC, which provides for punishment for rape on a woman suffering from mental or physical disability. As stated, categorically Section 376 (2) (l) IPC charge was not framed on the appellant. He was charged under Section 376 IPC. The appellant throughout knew as to who the victim is. The victim was examined and the court observed that the victim is mentally retarded woman. Therefore, the appellant since inception of the trial knew that he is facing trial for committing rape on a woman, who is mentally retarded. Therefore, merely because specific charge under Section 376 (2) (l) is not framed on the appellant, it does not vitiates the proceedings. In fact, Section 464 of the Code makes provisions in this regard. It is as hereunder:-

¶77

“464. Effect of omission to frame, or absence of, or error in, charge .—(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

¶78

(2) If the Court of appeal, confirmation or revision, is of opinion that a failure of justice has in fact been occasioned, it may,—

¶79

(a) in the case of an omission to frame a charge, order that a charge be framed, and that the

¶80

¶81

trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

¶82

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.”

¶83

In the instant case, the appellant has been charged under Section 376 IPC for raping a woman, who was mentally retarded. He has been convicted under Section 376 (l) IPC. It is an error. In fact, the appellant could have been specifically charged under Section 376 (2) (l) IPC. But, this error, in the charge does not vitiate the proceedings. The appellant knew since inception the charge leveled against him. Non framing of the charge under specific sub section has not caused any failure of justice. It has not effect.

¶84

Not only the oral evidence, but in fact, the scientific evidence in the instant case proves that it is the appellant, who committed rape on the victim. PW4 Sub Inspector, Vinod Kumar, who conducted investigation has stated about DNA samples. According to him, when dead foetus was removed from the womb of the victim, the hospital authorities did not take DNA samples. Therefore,

¶85

¶86

he applied in the court and the court requested the medical authorities to take samples. The letter Ex. A4 has been proved by PW4 Vinod Kumar. Not only this, according to PW4 Vinod Kumar, he also applied in the court for taking samples of the victim and thereafter, the court again requested the concerned medical authorities for taking samples of the appellant as well as the victim. These letters Ex. A7 and A9 have been proved by this witness. According to him, a Constable was sent to submit the samples in the FSL. The FSL report dated 15.10.2015 is on record. It is Ex. A14. PW4 Vinod Kumar has stated about these reports. FSL report dated 15.10.2015 is submitted by the Assistant Director, FSL, Dehradun. In view of Section 293 of the Code, the report may be used as evidence in the trial. This report concludes after examination as hereunder:-

¶87

“On the basis of above observations, it is concluded that:

¶88

1. Roshan Singh (source of exhibit-4 : Blood sample) is the biological father of the Foetus (source of exhibit-1 : : Placenta & exhibit-2 ; Blood sample).

¶89

2. PW2, the victim (source of exhibit-7 : Blood sample) is the biological mother of the Foetus (source of exhibit-1 : : Placenta & exhibit-2 : Blood sample).”

¶90

The statement of PW2 the victim proves the case against the appellant. The statement of victim are supported by the statements of her aunt and brother, who are PW3

¶91

¶92

and PW1 respectively. The FSL report further supports the statement of the victim.

¶93

The matter may be examined from another aspect. The appellant himself has never stated at any occasion that the relationship was consensual. He has simply denied. He denied of having any relationship with the victim. Therefore, in view of the evidence, as adduced during trial, this Court is of the view that the appellant established physical relations with the victim without her consent.

¶94

An argument has been advanced that the FIR is delayed. Delay in FIR is always not fatal for the prosecution. In fact, in the cases of rape, it is a common phenomena that the societal milieu restrains a person in promptly lodging an FIR. After all, a person at times considers the consequences of lodging an FIR. The social implications of it and particularly, the future prospects of the victim. Instant is a little different case. Here as stated, the victim, a woman of 39 years of age was staying in the village with her aunt. She is mentally retarded. She never knew the consequences of the act, which happened with her. She was not cautious. She did not realize that she became pregnant. It is on asking by her mother, she revealed as to what had happened to her Thereafter, the report has been lodged. This report, even

¶95

¶96

cannot be termed as delayed and even if it is delayed, the delay has been sufficiently explained. The delay does not make the prosecution case in any manner doubtful.

¶97

In view of the foregoing discussion, this Court is of the view that learned court below has rightly convicted and sentenced the appellant of the charges under Sections 376 (2) (l) IPC. There is no reason to make any interference in the impugned judgment and order. Accordingly, the appeal deserves to be dismissed.

¶98

The appeal is dismissed.

¶99

Let a copy of this judgment along with Lower Court Record be forwarded to the Court below for compliance.

¶100

Jitendra

Roshan Singh Negi v. State Of Uttarakhand

Case brief

What is this about?

What did the court decide?

Roshan Singh Negi v. State Of Uttarakhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Afjal Vs State Of Uttarakhand

Nisha Yadev Alias Nishu Vs State of Uttarakhand

Vidayavardhan Pandey Alias Vinod Kumar Pandey Vs State of Uttarakhand

M/S Suryanchal Furnitech Vs M/S Tata Steel Processing and Distribution Limited

M/S Suryanchal Furnitech Vs M/S Tata Steel Processing and Distribution Limited

M/S Suryanchal Furnitech Vs M/S Tata Steel Processing and Distribution Limited