Setu Thapa v. State of Uttar Pradesh (now State of Uttarakhand)

appellant, learned counsel for the State, and also perused the lower court record.

#3. Prosecution story in brief is that Smt. Surema Rana (P.W.1) is a widow who lives in Shiv Nagar, Ajabpur Kala, within the limits of Police Station Dalanwala, Dehradun, alongwith her minor daughter Suman Rana (P.W.2). On

23.12.1998, at about 4:00 p.m, accused/appellant Setu Thapa said to have enticed away Suman Rana (P.W.2), aged eight years towards jungle near her house, and attempted to commit rape on her. The girl told about the incident to her mother. Next day, P.W.1 Surema Rana went to the house of accused/appellant Setu Thapa and complained about his conduct to his parents. On

25.12.1998, family members accused/appellant Setu Thapa came to the house of Surema Rana and requested her not to complain about the matter to the police and 3 requested for compromise. However, Surema Rana did not agree for compromise, and gave first information report (Ex. A1) on 25.12.1998, to Senior Superintendent of Police, Dehradun. On the basis of said report crime no. 460 of 1998, was registered at Police Station Dalanwala. Investigation was taken up by Sub Inspector G.S. Manola, who interrogated the witnesses, inspected the spot and submitted charge sheet against accused Setu Thapa for his trial in respect of charge of offence punishable under section 376 read with section 511 IPC.

#4. The Additional Chief Judicial Magistrate- I, Dehradun, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. Learned II Additional Chief Judicial Magistrate, Dehradun, on 23.03.1999, after hearing the parties, framed charge of offence punishable under section 376 read with section 511 IPC, against accused Setu Thapa who pleaded not guilty and claimed to be tried. On this 4 prosecution got examined P.W.1 Surema Rana (informant), P.W.2 Suman Rana (victim), P.W.3 Sewa Singh Thapa and P.W. 4 Constable Mahendra Singh. The oral and documentary evidence was put to the accused under section 313 Cr.P.C, in reply to which the accused pleaded that he has been falsely implicated. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused Setu Thapa guilty of charge of offence punishable under section 376 read with section 511 IPC, i.e., attempt to commit rape. Thereafter, the parties was heard on sentence, and the convict was sentenced to rigorous imprisonment for a period of five years, and directed to pay fine of ` 5,000/-. Aggrieved by said judgment and order dated 28.01.2000, passed by learned II Additional Sessions Judge, Dehradun, in Sessions Trial No. 17 of 1999, this appeal was filed before Allahabad High Court by the convict. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. 5

#5. P.W.2 Suman Rana, a child witness aged nine years told that on the day of incident she was called by accused Setu Thapa from her house and he took her to nearby jungle. The witness has further narrated that the accused took out her under garments, and thereafter put out his underwear. The girl was made to lie down on the ground. It is further stated by P.W.2 Suman Rana as soon as accused attempted to commit rape, she got up whereafter accused asked her not to tell about the incident to anyone.

#6. P.W.1 Surema Rana mother of the victim has stated that on 23.12.1998, her minor daughter told about the above incident that accused Setu Thapa attempted to commit rape on her. The witness has further proved FIR (Ex. A1) lodged by her.

#7. Learned Amicus Curiae on behalf of the accused/appellant submitted that the first information report is delayed by two days. However, on examining the evidence on record, 6 this Court finds that though there is delay in lodging FIR but same appears to have been sufficiently explained, as the parents of the accused were trying to get the matter hushed up by making the informant to enter into compromise.

#8. It is also submitted on behalf of the accused/appellant by learned Amicus Curiae that the girl was not got medically examined as such the prosecution story cannot be said to have been proved beyond reasonable doubt. However, this Court is of the view had the commission of rape taken place the medical examination would have been relevant, but it is a case of attempt to commit rape, and it is nowhere stated by the girl or her mother that the accused had suffered any injury on any part of his body as such even if no medical examination was got conducted, it does not create any reasonable doubt in the prosecution story. It is pertinent to mention here that there appears no enmity between the informant and the accused on the basis of which it can be said that he has 7 been falsely implicated.

#9. Therefore, having reassessed evidence on record, this Court is of the view that there is no illegality committed by the trial court in holding that the prosecution has successfully proved charge of attempt to commit rape as against accused Setu Thapa. However ,on the point of sentence this Court is conscious of the fact that accused/appellant Setu Thapa had remained in jail during trial. Had it been a case of commission of rape it could have been said that the convict must be sentenced to rigorous imprisonment for a period of seven years which is the minimum sentence for commission of rape but it is a case of attempt to commit rape as such there is no such minimum limit of the sentence. Considering the fact and circumstances of the case, this Court is of the view that since the accused/ appellant has already been in jail for more than one year and two months, as such if the sentence awarded by the trial court is reduced to the period already undergone it would meet the ends of justice. 8

#10. Accordingly, the appeal is dismissed on the point of conviction. However, on the point of sentence, the sentence awarded against the accused/appellant Setu Thapa by the trial court is reduced to the period already undergone during the trial. He is on bail. He need not to surrender. Lower court record be sent back. (Prafulla C. Pant, J.) Parul

19.09.2012