IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL No.1666 of 2001 (Old No.605 of 1990) The State …….….…. Appellant Versus 1. Jahir Hasan S/o Ibrahim 2. Sharif Ahmad Both R/o Village Awaliwala, P.S. Sahaspur, Distt. Dehradun …………… Respondents Dated: September 25, 2008 Sri Tanuj Semwal, AGA for State/appellant Sri Prem Kaushal Adv. i/b Sri R.S. Sammal, counsel for the respondents HON. DHARAM VEER, J. This appeal, preferred by the State/appellant u/s 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 19.12.1989 passed by Additional Sessions Judge, Dehradun in S.T. No.41 of 1989, State Vs. Jahir & another, whereby the learned Additional Sessions Judge has acquitted each of the respondents/accused Jahir and Sharif Ahmed for the offence punishable under Section 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). 2. I have heard Sri Tanuj Semwal, learned AGA for the State/appellant and Sri Prem Kaushal, Advocate holding brief of Sri R.S. Sammal, counsel for the respondents and perused the entire material available on record. 2 3. In brief, the prosecution case is that P.W.1 Jamil Ahmed lodged a FIR stating therein that on 8.9.1988 at about 8:00 A.M., his daughter Km. Zulekha, aged about 12-13 years, was going in the field for protecting the crop. On the way, respondent/accused Jahir Hasan was ploughing into his field and respondent/accused Sharif Ahmed was also there. Then on the instigation of respondent/accused Jahir Hasan, respondent/accused Sharif Ahmed caught hold the victim Km. Zulekha and caused injuries on her face with sickle (DARANTI) and by fist and he also committed rape with her. Due to this incident, the victim Km. Zulekha became unconscious. When she came into senses, then she came to her house and informed about the matter to her mother P.W.3 Smt. Asgari. Thereafter, in the night when the complainant P.W.1 Jamil Ahmed came in the house, then he was informed about the incident by P.W.3 Smt. Asgari. With the same averments, the FIR was lodged on 9.9.1988 at 2:00 P.M. by P.W.1 Jamil Ahmed at P.S. Sahaspur, Dist. Dehradun, the FIR is Ex.Ka-1. On the basis of this FIR, the Chik FIR was prepared by Head Moharrir Ajay Pal Singh (P.W.7), i.e. Ex.Ka-10. The entry was also made in the G.D., the copy of G.D. is Ex.Ka-8. The investigation of this case was entrusted to S.I. Sewak Ram Dhilodiya (P.W.6). The victim Km. Zulekha was medically examined by P.W.4 Dr. Archana Srivastava on 9.9.1988 at 6:00 P.M. and her medical report was also prepared, i.e. Ex.Ka-4. The supplementary report was also prepared in respect of victim on 13.9.1988, which is on record. During the course of investigation, the I.O. took in his possession the broken hairs and broken bangles of the victim and prepared a Fard, i.e. Ex.Ka-2. During the course of investigation, the I.O. also inspected the place of occurrence and prepared the site plan, i.e. 3 Ex.Ka-6. The I.O. also took in his possession the blood stained Salwar of the victim and prepared a Fard, i.e. Ex.Ka-5. Later on, the investigation was transferred to S.I. Jai Singh, who after completing the investigation, had submitted the charge sheet, i.e. Ex.Ka-7. 4. It appears that learned Munsif Magistrate (L.C.C.) Dehradun has committed the case to the court of Sessions on 01.03.1989 after giving necessary copies to the accused persons as required under Section 207 Cr.P.C. 5. Learned Sessions Judge appears to have transferred the case to the court of Additional Sessions Judge, Dehradun for disposal according to law. 6. On 21.03.1989, learned 2nd Addl. Sessions Judge, Dehradun framed the charge against the respondents/ accused Jahir and Sharif for the offence punishable under Section 376 IPC. The charge was read over and explained to each of them, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Jahir Ahmed, complainant of the case; P.W.2 Km. Zulekha, victim of the case; P.W.3 Smt. Asgari, mother of the victim; P.W.4 Dr. Archana Srivastava, who has medically examined the victim Km. Zulekha; P.W.5 Sadhu Ram Sharma, scriber of the report, P.W.6 S.I. Sevak Ram Dhilodiya, I.O. of the case and P.W.7 Head Constable Ajay Pal Singh who prepared the Chik FIR. 8. Thereafter, the statements of the respondents/ accused were recorded u/s 313 of Cr.P.C. The oral and 4 documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. In oral evidence, they have produced D.W.1 Jabir Hussain. However, they did not produce any documentary evidence in their defence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Additional Sessions Judge, Dehradun vide his judgment and order dated 19.12.1989 has acquitted the respondents for the offence punishable u/s 376 IPC. Feeling aggrieved by the aforesaid judgment and order, the State has preferred the present appeal. 10. Before further discussion, it is pertinent to mention that victim Km. Zulekha was medically examined on 09.09.1988 at 6:00 P.M. by P.W.4 Dr. Archana Srivastava and her medical report was also prepared i.e. Ex.Ka-4. The medical officer on the person of Km. Zulekha found as under: - General Examination – Breasts Developed Pubic Hairs present No marks of injury on any part of the body or private parts Internal Examination- Hymen Torn, Vagina admits one finger, slight bleeding P/v present. Smear taken for post- fornix and sent for histopathological examination. Advised- X-ray elbow, wrist knee and ankle joint. After receipt of the X-ray report, the medical officer also prepared the Supplementary Report in respect of victim 5 Km. Zulekha, and it was stated in the supplementary report as under: - Vaginal Smear – (10.9.88) Vaginal smear is found negative for Gonococci and Spermatozoa. X-ray Report- (10.9.88) No.6869 F1 1. All the epiphysis around elbow joint are fused except medial epicondyle and upper end radius ulna which are not yet fused 2. Epiphysis lower end radius and ulna not fused. All the carpal bones are present. 3. Epiphysis around knee joint and lower end Tibia and Fibula also not yet fused Conclusion – No definite opinion regarding rape can be given. Age of the girl is around 12 years. 11. To prove the aforesaid medical report, the prosecution has examined P.W.4 Dr. Archana Srivastava who has stated that on 9.9.1988 she was posted as Medical Officer in Doon Hospital. On that day at 6:00 P.M., she had medically examined the victim Km. Zulekha and prepared her medical report, i.e. Ex.Ka-4. In cross- examination, she has stated that if the sexual intercourse would not be committed with the girl, even then one finger could easily be admitted in the vagina. She has further stated that if forceful intercourse is done, then hymen would be shattered and contusion and swelling would also present. 12. To further prove its case, the prosecution has examined P.W.1 Jamir Ahmed, who is the father and complainant of the case. The incident in question was narrated to him by his wife Smt. Asgari (P.W.3) when he 6 came back in the house in the night and after scribing the report from P.W.5 Sadhu Ram, he lodged the report of the incident. Hence, he is not the eyewitness of the case and he lodged the FIR on the hearsay version. However he has proved the FIR Ex.Ka-1. 13. P.W.3 is Smt. Asgar, who is the mother of the victim. She is also not the eyewitness of the case and she has stated whatever her daughter Km. Zulekha (P.W.2) had informed her. 14. P.W.5 is Sadhu Ram who has stated that Jamir Ahmed (P.W.1) had got the report scribed from him and whatever he (Jamir Ahmed) had stated, he had written. He also proved the FIR, i.e. Ex.Ka-1. 15. P.W.2 is Km. Zulekha, victim as well as eyewitness of the case, who has stated that on the date of incident, she was going towards her field. On the way, respondent/accused Zahir was ploughing his field and respondent/accused Sharif was also there. Then, respondent/accused Sharif caught hold her and committed Marpit with her. He also beaten her 2-3 times with fist. When she made noise, then respondent/accused Sharif caused injury at her face with sickle. Thereafter, the respondent/accused Sharif committed rape with her. After the incident, she became unconscious and when she regained her conscious, she came back to her house. During this incident, her hairs and bangles were broken. After coming back at her house, she narrated the entire incident to her mother. Thereafter, when her father came in the house in the night at 8-9 P.M., then her mother narrated the entire incident to her father. On the next day morning at 8-9 A.M., her mother and father along with her proceeded to lodge the report. Firstly, they 7 reached in the house of Yaseen and subsequently they reached in the house of Sadhu Ram. Then the report was scribed from Sadhu Ram by her father and the report was given in the police station. Soon thereafter, she was also medically examined. She also proved her Salwar as Ex.1, broken pieces of bangles as Ex.2 and broken hairs as Ex.3. 16. P.W.6 is S.I. Sewak Ram Dhilodiya, I.O. of the case, who has stated that on 8.9.1988, he was posted in P.S. Sahaspur and the investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of witnesses and also took in his possession Salwar of victim and prepared a Fard, i.e. Ex.Ka-5. He also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. He also stated that charge sheet of this case was submitted by S.I. Jai Singh, i.e. Ex.Ka-7. 17. P.W.7 is Head Constable Ajay Pal Singh who has proved the Chik FIR Ex.Ka-10 to be prepared by him. 18. Thereafter, the statements of the respondents/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. However, they did not produce any documentary evidence in their defence. In oral evidence, they have produced D.W.1 Jabir Hussain who has stated that respondent-Jahir Hasan is his cousin brother. Before one month of this incident, election of Up-Pradhan was held and he contested the election against the father in law of complainant Jamir Ahmed. He also stated that respondent/accused Jahir Hasan had supported him and 8 due to this reason, he was falsely implicated by the complainant. 19. Mr. Tanuj Semwal, learned AGA for the State could not point out any mistake in the judgment and order passed by the trial court. On the other hand, Sri Prem Kaushal, Advocate appearing for the respondents/accused has argued that the trial court has not erred in law by acquitting the respondents/accused as against the respondents/accused, there is sole evidence of P.W.2 Km. Zulekha, which does not inspire confidence and is not reliable and believable evidence. I find force in the argument advanced by counsel for respondents. From the evidence discussed above, it reveals that victim Km. Zulekha has stated that respondent/accused Sharif had caused injuries on her face with a sickle and also with fist but as per the medical report, there is no injury either on the private part or on any other part of the body. Besides this, P.W.4 Dr. Archana Srivastava has also stated in her evidence that there is no injury on the private part or any other party of the body of the victim. Further, P.W.2 Km. Zulekha has also stated in her evidence that respondent/ accused Sharif also committed rape with her, however as per the medical report and supplementary medical report, the medical officer P.W.4 Dr. Archana Srivastava has clearly stated that no definite opinion regarding rape can be given. The fact which further strengthen the defence case is that P.W.4 Dr. Archana Srivastava in her cross-examination has stated that in case if the sexual intercourse would not be committed with the girl, even then one finger can easily be admitted in the vagina. She has further stated that if forceful intercourse is done, then hymen would be shattered and contusion and swelling would also 9 present. However, after a perusal of the medical report of the victim, it reveals that hymen was not shattered and even no contusion or swelling was present. The above-said facts and circumstances of the case goes to create a reasonable doubt in the prosecution story and also prove that the evidence of P.W.2 Km. Zulekha does not get corroboration from the medical evidence. The evidence of P.W.2 Km. Zulekha as well as the evidence of P.W.4 Dr. Archana Srivastava are contradictory to each other. In this way, the learned trial court has not erred in law by acquitting the respondents/accused for the offence punishable u/s 376 IPC. 20. Learned counsel for the respondents further argued that in the present case, the FIR is delayed one and no reasonable explanation has been given by the prosecution with regard to delay. I also find substance in this argument advanced on behalf of respondents as in the present case the incident was said to be happened on 8.9.1988 at about 8:00 A.M., however the FIR was lodged on 9.9.1988 at 2:00 P.M., i.e. after a delay of about 30 hours. However, no reasonable explanation whatsoever has been given either in the First Information Report or in the prosecution witnesses, which further strengthen the case of the respondents/accused. 21. Learned counsel for the respondents further submitted that where two views are possible and one of the views is possible which was taken by the trial court, then at the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance was placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of 10 M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do no, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case. 22. On the basis of the evidence discussed above, I am of the considered view that when one view is also possible as the view taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the view taken by the trial court must be accepted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above 11 and, therefore, the prosecution has not able to prove its case against the respondents beyond reasonable doubt. 23. For the reasons as discussed above, I am of the view that the trial court was justified in acquitting the respondents for the offences punishable under Section 376 of IPC and I also concur with the judgment and order passed by the trial court. 24. Therefore, the appeal preferred by the State/ appellant is devoid of merit and is accordingly dismissed. The judgment and order dated 19.12.1989 passed by learned Additional Sessions Judge, Dehradun is accordingly confirmed. (Dharam Veer, J.) September 25, 2008 Rajeev Dang