IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL NO.646 OF 2001 (Old No.618/1997) Suresh Kumar ……… Appellant Versus The State ……… Respondent (2) CRIMINAL APPEAL NO.1199 OF 2001 (Old No.774/1997) Dilla ……… Appellant Versus The State ……… Respondent Dated: March 09, 2010 Sri Vikas Pandey, learned amicus curiae for the appellant- Suresh Kumar (CRLA No.646 of 2001) Sri Navneet Kaushik, learned counsel for the appellant-Dilla in CRLA No.1199 of 2001 Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. Both the above-said criminal appeals have been arisen out of the common judgment and order dated 4.4.1997 and the incident in both the appeals is one and the same as well as the evidence is also common in the said trial, hence both of them are being disposed of by this common judgment and order. 2. Both the criminal appeals, preferred under section 374(2) of The Code of Criminal Procedure, 1973 2 (hereinafter to be referred as Cr.P.C.), are directed against the common judgment and order dated 4.4.1997 passed by the II Addl. Sessions Judge, Haridwar in Sessions Trial No.389 of 1993, State Vs. Dilla & Suresh Kumar, whereby the learned II Addl. Sessions Judge has convicted each of the appellants/accused Dilla and Suresh u/s 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to ten years’ rigorous imprisonment with fine of Rs.2,000/- each and in default of payment of fine, further one months’ R.I. each. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that complainant Km. Umesh Kumari (P.W.1) lodged an FIR stating therein that on 18.8.1988, she reached at the Laksar Railway Station to catch the train for Fajjalpur, Distt. Bijnaur so as to go at her sister’s house. However, she could not catch the train going for Nazibabad. From there she reached at Raisi where she was advised to go for Balawala so as to catch the Bus for Madawar. After that she started moving towards Balawala adjacent to the railway line. When she reached farther 1½-2 kms. towards Balawala, then two persons came and enquired about her going, to whom she informed that she was going at her sister’s house. When she inquired about the name of those two persons, they disclosed their names as Suresh Kumar and Dilla (appellants). The appellants-accused told her 3 that if she would go alone, then she would be taken away by the miscreants and further told her to go along with them. It was further stated that after that the appellants-accused forcibly took her below the railway line where firstly the appellant-accused Dilla and subsequently, Suresh committed rape with her forcibly. After committing the rape, both the appellants-accused warned her that if she would inform about their names, then she would be killed. After that the appellant- accused Suresh gone from there and the appellant- accused Dilla brought her in a carpenter shop at Raisi. Meanwhile, two police constables, namely, Deep Chandra and Rajendra Prasad reached at that shop where she informed about the entire incident to them. The appellant-accused Dilla was arrested over there and after that the appellant-accused Suresh was also been searched and at Railway Station, Raisi, Suresh was also arrested by the police constables. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Umesh Kumari. On the basis of the FIR (Ex.Ka-1), Head Moharrir Ramanand Sharma prepared the Chik FIR of the case on 18.9.1988 at 8:15 PM, i.e. Ex.Ka-7. He also made entry in the G.D., carbon copy thereof is Ex.Ka-8. Investigation of this case was entrusted to P.W.3 S.I. Pramod Kumar. Victim Km. Umesh was sent for the medical examination where she was medically been examined by P.W.2 Dr. Smt. S.Gupta and medical report Ex.Ka-2 was prepared. The same medical officer also prepared the supplementary medical report of victim, i.e. Ex.Ka-3. The I.O. during investigation took in his possession the under-wears worn by the 4 appellants-accused at the time of above said incident and prepared Fard, i.e. Ex.Ka-4. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-5. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellants/accused, i.e. Ex.Ka-6. 5. After receiving the charge sheet, learned CJM, Haridwar committed the case to the court of Sessions on 7.09.1993 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. 6. On 14.7.1994, the learned Sessions Judge, Haridwar has framed the charge against the appellants/accused Dilla and Suresh u/s 376/506(2) IPC. The charges were read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried. Thereafter, the case was transferred to II Addl. Sessions Judge by the Sessions Judge for disposal as per law. 7. To prove its case, the prosecution has examined P.W.1 Smt. Umesh, victim, P.W.2 Dr. Smt. S.Gupta, who medically examined the victim and P.W.3 S.I. Pramod Kumar Singh, I.O. of the case. 8. After that the statements of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made 5 against them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in defence. 9. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned II Addl. Sessions Judge, Haridwar vide judgment and order dated 4.4.1997 has convicted and sentenced the appellants/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 10. Before further discussion, it is pertinent to mention the medical report (Ex.Ka-2) of the victim Km. Umesh who was medically examined on 18.9.1988 at 10 PM by P.W.2 Dr. S.Gupta, which is as under: - “Local Examination-Axillary and pubic hairs present, well developed. No mark of injury in lower abdomen, inner side of thigh or breast. Clothes are stained, sealed and handed over to constable no1.43 Deep Chand. P/V-External Genitalia normal, hymen ruptured, easily admits 2 fingers, uterus size normal, bleeding absent. Vaginal smear taken and sent for pathological examination.” 6 11. Thereafter, the same medical officer prepared the supplementary report of the victim (Ex.Ka-3) which is as under: - “Vaginal Smear Report-Shows no spermatozoa dead or alive. X-ray report-In Spiagram-The epiphysis around right elbow joint have been completely fused with their respective bones. The epiphysis of distal ends of right radius and ulna bones have also fused and only fusion lines are visible. Conclusion-The age of girl is about 17 years. No definite opinion rape can be given.” 12. To prove the above-said reports, the prosecution has examined P.W.2 Dr. Smt. S.Gupta who has proved the medical report Ex.Ka-2 and supplementary medical report Ex.Ka-3 prepared by her. She has stated that no definite opinion about the rape can be given and in the vaginal smear report, no spermatozoa was found. In cross-examination she stated that there may be age variation of 1-2 years about the age opined by her in respect of victim. 13. To further prove its case the prosecution has examined P.W.1 Smt. Umesh who has reiterated the entire version of the FIR in her examination in chief. In her cross-examination she stated that she had come to Laksar from Manna Kheri on 18.8.1988 and she started at about 7 Am and she had reached from Manna Kheri 7 to Laksar by bus at about 11:30 AM. She further stated that at the time of incident, her age was about 18-19 years. After the incident, appellant Suresh had gone on foot and she came to Raisi along with Dilla (appellant). She further stated that while coming to Raisi, there were shops in between the Railway Bridge and Raisi station, however she had not disclosed about the incident to any of the shopkeepers. Even she had not disclosed to the carpenter about the incident at whose shop, she sat along with the appellant-accused Dilla for 10-15 minutes. She further stated that the said carpenter was known to her earlier. 14. P.W.3 S.I. Pramod Kumar Singh who stated that investigation was entrusted to him. During investigation, he recovered the under-wears of the appellants-accused and taking the same into possession, he prepared the Fard, i.e. Ex.Ka-4. He also prepared the site plan of the place of occurrence, i.e. Ex.Ka-5. During the course of investigation, he recorded the statements of witnesses and on completing the investigation, he filed the charge sheet, i.e. Ex.Ka-6. Chik FIR of this case was prepared by H.M. Ramanand Sharma, i.e. Ex.Ka-7. In the same process entry was also made in the G.D., carbon copy thereof is Ex.Ka-8. 15. After that the statements of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely 8 implicated. However, they did not produce any oral or documentary evidence in defence. 16. Sri Vikas Pandey, learned amicus curiae for the appellant-Suresh and Sri Navneet Kaushik, learned counsel for the appellant-Dilla argued that as per the aforesaid evidence, the prosecution has not been able to prove its case against the appellants-accused beyond reasonable doubt. It was further submitted that there is only a sole evidence of P.W.1 Km. Umesh against them which does not inspire confidence. I find substance in this arguments put forth on behalf of the appellants for the following reasons: - A. The oral evidence of the victim does not get corroboration from the medical evidence. As per the oral evidence of victim Km. Umesh, the appellants- accused had committed rape forcibly with her on 18.8.1988, but she was medically been examined on 18.9.1988 at 10 PM by P.W.2 Dr. Smt. S.Gupta, and the medical officer has given opinion that no definite opinion about the rape can be given and no spermatozoa dead or alive was found. Even otherwise, if it is assumed that if the incident was said to be happened on 18.9.1988, in that case also, the medical evidence does not support the oral evidence of victim for the reason that within eight hours of the incident, she was medically been examined and on the basis of vaginal smear and x- ray report, the medical officer has opinion that no definite opinion about the rape can be given for the reason that no spermatozoa dead or alive was found. 9 In this way, the medical evidence does not corroborate the oral version of victim, which creates a reasonable doubt in the evidence of P.W.1 Km. Umesh. B. That as per the FIR lodged by the victim, rape was committed with her on 18.8.1988 and in her statement recorded before the trial court also, she deposed that the incident was said to be occurred on 18.8.1988, however the CHIK FIR of this case was prepared showing the date of incident as of 18.9.1988 at 2 PM, which goes to create a reasonable doubt in the oral testimony of the victim. C. That the place of occurrence where the incident is said to have taken place is in between the Raisi Station and the Railway Bridge which is about 70 kilometers from Manna Kheri, P.S. Mangalore, where the victim was living at the time of the said incident. The prosecution has failed to explain by sufficient cause as to how the victim had come to the place of occurrence after traveling about such a distance of 70 kilometers in an unknown forest area where in the normal circumstances, one cannot be expected to travel. D. That the victim herself has admitted in her testimony that she was about 18-19 years of age on the date of incident and she was major. E. That the Constables Deep Chandra and Rajendra Prasad, to whom the victim had narrated the entire incident for the very first time at the shop of a 10 carpenter and even who were also cited as witnesses in the charge sheet, were not examined by the prosecution before the trial court as witnesses, which further creates a reasonable doubt in the prosecution story as well as in the statement of victim. F. That the Carpenter, in whose shop after the so called incident, the victim stayed for about 10-15 minutes and where she narrated the incident to the police persons, was also not been examined by the prosecution, which further creates a doubt over the prosecution story. G. That after the aforesaid incident, the victim came to Raisi along with the appellant-accused Dilla. In her cross-examination, she has admitted that while coming to Raisi, there were several shops in between the Railway Bridge and Raisi station, however she had not disclosed about the incident to any of the shopkeepers. It is not possible to believe as to why the victim had not informed about the incident to the shopkeepers or other persons who came across her while going towards Raisi, which further creates a reasonable doubt in the victim’s statement. H. That it is settled law that it is permissible to record and sustain a conviction on the evidence of a solitary witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. I am fortified in my view with the judgment of Hon’ble Apex Court reported in 2003 (1) Supreme Court 11 Cases, 465 “Joseph Vs. State of Kerala”. Para 13 of this judgment is relevant which is reproduced as under :- “13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” 17. For the reasons aforementioned, the evidence of P.W.1 Km. Umesh cannot be said to be reliable, believable or natural evidence and the same does not inspire confidence. Hence, no reliance can be put on the statement of P.W.1 Km. Umesh and as such the judgment and order passed by the trial court in convicting and sentencing the appellants-accused on the basis of sole testimony of P.W.1 Km. Umesh, is not justified and the same is liable to be set aside. 18. Resultantly, both the appeals are allowed. The judgment and order dated 4.4.1997 passed by the II Addl. Sessions Judge, Haridwar in S.T. No.389 of 1993, State Vs. Dilla & another, convicting and sentencing the appellants-accused as discussed above, is hereby set aside. The appellants are on bail. They 12 need not surrender. Their bail bonds are cancelled and sureties are discharged. 19. Let the lower court record be sent back. (Dharam Veer, J.) March 9, 2010 Rajeev Dang