HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 115 of 2002 Dinesh Lal S/o Sheru Lal R/o Village Falasi Patwari Circle Chopta Jakhani Tehsil and District Rudraprayag ……Appellant Versus State of Uttarakhand …… Respondent Mr. Pankaj Purohit, Advocate for the appellant. Mr. Nandan Arya, A.G.A with Mr. Prabhakar Joshi, Brief Holder for the State / respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been preferred against the judgment and order dated 18/05/2002 passed by the Sessions Judge, Rudraprayag in Sessions Trial No. 10 of 2002, State Vs. Dinesh Lal whereby the appellant has been convicted u/s 376 r/w 511 Indian Panel Code, 1860 (for brevity as I.P.C.) & sentenced to undergo rigorous imprisonment for 5 years and a fine of Rs. 2,000/-. In default of payment of fine, the appellant should further undergo imprisonment for one year. The appellant was further convicted u/s 457 I.P.C. and 323 I.P.C. and sentenced to undergo imprisonment for one year and six months respectively. The sentences were to run concurrently. However, the appellant was acquitted of the charges leveled against him u/s 354, 504 & 506 I.P.C. 2. Brief facts for the disposal of this appeal are that the victim moved an application before the Chief Judicial Magistrate u/s 153 (3) of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred as Cr.P.C.) alleging therein that on 20.06.2001 in the night at about 10:00 p.m., when her husband was not present in her house and he had gone in the relation somewhere, the accused/appellant by breaking the door of the room of the victim entered into her room. The appellant put off his pant and undergarments and torn the clothes of the victim and tried to overpower her by closing her mouth. The appellant also tried to molest her by catching her breast. The appellant further tried to commit forcible sexual intercourse with the victim. The victim made a cry due to which, Harish Lal PW2 who was sleeping in the adjoining room of the victim, reached at the spot and tried to intervene in the matter. The appellant manhandled him and beaten him by a stick. Meanwhile, father-in-law and mother-in-law of the victim reached at the spot. The appellant immediately fled away after taking his clothes from the place of the incident. On the next day, the victim went to the Patwari Chowki to lodge the report but the Patwari was not available at the Headquarter, therefore, the victim presented the application before the Magistrate concerned. Pursuant to the said application, the Magistrate directed the Revenue Police to register the case and investigate the matter. The matter was investigated by Patti Patwari and after completing the investigation, the Patti Patwari submitted the chargesheet Ex.Ka.10 before the court concerned. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charges u/s 457, 354, 376/511, 323, 504, 506 I.P.C. against the accused/appellant. The accused/appellant denied the charges levelled against him and claimed his trial. 4. The prosecution in support of its case examined victim as PW1. She has narrated the entire prosecution story. Harish Lal PW2 claimed himself to be the eyewitness of the incident. He is the brother-in-law of the victim. Patti Patwari Jeet Pal Singh PW4 is the Investigating Officer of the case. Dr. Arun Pandey PW3 is the Medical Officer who examined the victim PW1 and Harish Lal PW2. Dr. Arun Kumar PW3 has examined Harish Lal PW2 on 20.06.2001 at about 1:15 p.m. He also examined the victim on 21.06.2001 at about 10:00 a.m. in the morning. The doctor has found the following injuries on the person of Harish Lal PW2: 1. ½ cm. in breadth – linear, pinkid abrasion all along the upper chest wall on the back is present – from the elevation of left shoulder to inferior margin of right axilla. Maximal mark is on both scapular skin. 2. Another abrasion of same nature is present on the lateral surface of right middle arm. The following injuries were found on the person of the victim : 1. Ill defined tender skin present on the antero lateral surface of neck. No colour change or visible injury notices. 2. Tenderness present on the anterior surf of upper chest wall. Both breasts non tender. No visible wound seen. 5. As per the opinion of the doctor, the injuries on the person of Harish Lal PW2 were fresh in nature; the injuries can be sustained by the injured in less than one day duration; these injuries can be caused by blunt object; and the nature of the injuries were simple. The doctor further opined that the injuries on the person of victim were simple; the exact time cannot be ascertained; it is possible that these injuries could be caused within three days from the date of medical examination; and these injuries could be caused by the blunt object. 6. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that there was a dispute between the father-in-law of the victim and the accused. He has further stated that on 19.06.2001 when he was going to jungle, he has seen the victim and her father-in-law in objectionable condition behind a bush. Since then, the victim was having grudge against him and he was falsely implicated him in this case. 7. The accused/appellant did not adduce documentary and oral evidence in support of his defence. 8. The learned Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellant and sentenced him as indicated above. 9. I have heard the learned counsel for the parties and perused the record. 10. At the outset, it needs to be mentioned here that there is no medical examination of the victim by the Medical Officer pertaining to rape or attempt to rape. The injuries of the victim were examined by Dr. Arun Kumar PW3. There is only ocular testimony to prove the charges against the appellant. The prosecution in support of its case has adduced the evidence of victim PW1. It is settled position of law that in absence of medical evidence, if the evidence of the victim is found credible and cogent, the conviction can be solely based on her testimony. 11. Now, I have to analyze the testimony of the victim PW1. The victim has stated in her evidence that on the date of incident, i.e. 20.06.2001 at about 10:00 p.m., the appellant entered into her room by breaking the door. On the date of incident, her husband was not present in the house and he had gone somewhere in the relation. As soon as the appellant entered into her room, he put off his pant, undergarments, torn the clothes of the victim and tried to commit forcible sexual intercourse with her. The victim made a cry due to which, Harish Lal PW2 who was sleeping in the adjoining room of the victim, reached at the spot and tried to intervene in the matter. The appellant has beaten Harish Lal PW2 by a stick. Meanwhile, father-in-law and mother-in-law of the victim reached at the spot. Thereafter, the appellant immediately fled away from the place of the incident. Harish Lal PW2 has also stated that he was also present at the spot and he had seen the entire incident. He has also narrated the entire incident before the trial court in his evidence. He was produced by the prosecution to corroborate the evidence of the victim PW1. 12. The learned counsel for the appellant contended that the first information report {Application u/s 156 (3)} contains the date of incident as 20.06.2001 whereas the victim has admitted in her evidence that the incident took place on 19.06.2001; learned trial court framed the charges against the appellant alleging therein that the incident took place on 20.06.2001; the statement recorded under Section 313 Cr.P.C. also indicates that the incident took place on 20.06.2001; the testimony of the victim PW1 is not credible and cogent; the evidence of the victim also contained major contradictions and variations in her evidence with the statement recorded under Section 161 of the Cr.P.C. and the F.I.R. {application 156 (3) of the Cr.P.C}; the evidence of Harish Lal PW2 also contradicts the evidence of the victim PW1; and their evidence contradicts each other in every point. The learned A.G.A. appearing for the State refuted the contentions and supported the findings recorded by the trial court. 13. The first information report, i.e. an application under Section 156 (3) Cr.P.C. clearly indicates in para 2 that the incident took place on 20.06.2001 at about 10:00 p.m. in the night. When the victim appeared before the court, she has categorically stated that the incident took place on 19.06.2001. She has further stated that she is an illiterate lady so she could not exactly mention the exact date in her application moved under Section 156 (3) Cr.P.C. When she was further cross-examined, she has categorically stated that her evidence is being recorded on 3rd May, 2002. This was the correct day when her evidence was recorded. It cannot be said that she is not aware of the date. I have further noticed that during the cross-examination, she has stated that she went to the court with her husband. The application was drafted by an Advocate and after drafting the application on the instructions of the victim, the said application was read over to her. If there was any doubt about the date, she could have stated then and there to the Advocate concerned. It is not so that she was alone there. According to her evidence, her husband was also there with her. Her husband could have told her that she has made an error in recording the date. Apart from this, she could have instead of mentioning the exact date could have mentioned the only one day or two day before in the application itself. The victim instead of taking the later recourse, she adopted to tell the exact date to the Advocate concerned. The date of incident has totally changed in the evidence as well as in the F.I.R. Thus, this is a measure contradiction. It is a settled position of law that the minor contradictions did not belie the genesis of the case and such type of contradictions cannot be taken into account. The contradiction pointed out above, is a major contradictions in which the date of incident has totally changed. 14. Apart from this, there is contradiction in the testimony of the victim PW1 and Harish Lal PW2 regarding how these two injured persons were taken to the hospital. According to the victim PW1 in her first information report {an application under Section 156 (3)} in para 6 she has stated that on next day of the incident, she went to the Patwari Chowki but patwari did not meet her so she went to Srinagar Civil Hospital with her brother-in-law Harish Lal PW2 where she was medically examined by the Medical Officer. When she appeared before the Court, she has stated in her cross- examination that she alongwith her husband went to Srinagar Civil Hospital at 12:00 night on the date of the incident by taxi. They reached in the Srinagar Hospital at about 4:00-5:00 a.m. in the next morning. The doctor met them in the hospital and she was medically examined by the Medical Officer in the hospital itself. She has further admitted that there is no hospital in Chopta, Materokhal and Rudraprayag. But the medical report Ex.Ka.3 of the victim reveals that she was medically examined on 21.06.2001 at about 10:00 a.m. not in the intervening night of 19/20.06.2001. The evidence of the Dr. Arun Kumar PW3 further corroborates this fact. It is further pertinent to mention here that Harish Lal PW2 who is said to be the eye- witness of the incident and who claimed to have sustained the injuries in the said incident has stated in his evidence that on the next day of incident, they went to Rudraprayag hospital where the doctor has refused to medically examined them. Then they went to Srinagar Civil Hospital and reached there at about 2:00p.m. They could not locate the doctor for one hour so they went to the house of the doctor and thereafter medical examination was conducted. According to Harish Lal PW2, he went to Srinagar Civil Hospital on the next day. His medical examination was conducted according to Dr. Arun Kumar PW3 on 20.6.01 at about 1.15 a.m. It is noticeable fact that both the injured had stated to the doctor that some miscreants had committed ‘marpeet’ with them. It is the settled position of law that if a person gives a statement immediately after the incident to a person that is relevant under the provisions of the Indian Evidence Act. The injured have categorically stated to the doctor that they have been manhandled by some miscreants. They had not named as stated in the first information report. 15. The other glaring feature which leads to take inference that the evidence of the prosecution is not trustworthy. On the one hand, as per the F.I.R {an application under Section 156 (3)} her husband had gone in some relations on the date of incident and she was alone in her room. The brother- in-law Harish Lal PW2 was sleeping separately in the adjoining room of the victim. On the other hand when she appeared before the Court as PW1, she has stated that in order to take milk her husband had gone to the house of her mother-in-law and father-in-law who were residing at about 1 km from the place of incident. According to Harish Lal PW2 his parents, i.e. father-in-law and the mother-in-law of the victim had gone to another house for some work. Thus, the absence of her husband at the time of incident has not been sufficiently explained by the prosecution and there are three different versions about the absence of her husband from the house at about 10:00 pm on the date of incident. It is pertinent to mention here that the house of the father-in-law and the mother-in-law of the victim is about 1 km away from the place of incident as admitted by the victim in her evidence herself. She had admitted that during the course of scuffle with Harish Lal PW2, the father-in-law and the mother-in-law reached immediately at the spot. There is a contradiction in between the evidence of victim PW1 and Harish Lal PW2 on this point also. According to Harish Lal PW2 nobody has gone to call his father and mother who came there immediately. It is also pertinent to mention here that the victim PW1 has stated in her evidence that the ‘danda’ by which ‘marpeet’ was took place brought by the appellant with him whereas in the statement recorded under Section 161 Cr.P.C of the victim, the ‘danda’ was kept inside the house. Apart from this, there is a contradiction where the clothes were kept; and whether the accused appellant put off his pant and undergarments inside the room. As I have pointed out that there is inconsistency and variations on the vital points of the evidence, the evidence of victim as well as Harish Lal PW2 is not credible and cogent. 16. It was pointed out that there was a delay in reporting the matter to the police station or to the Magistrate. Now, I have to see whether plausible explanation has been offered by the prosecution to the said delay or not. It is not disputed that the incident took place either on 19/06/2001 or 20/06/2001. The application u/s 156 (3) was submitted to the Magistrate having the jurisdiction on 26.06.2001. It has been categorically stated in the application that the victim went to the Patwari Chowki in the next morning. The Patti Patwari did not meet her and thereafter she came to Srinagar where medical of her brother-in-law was conducted. Thereafter, he again went to Patwari Chowki but the Patwari did not meet her. The relevant para is quoted below :- “fd nwljh lqcg izkfFkZuh iVokjh pkSdh xbZ ysfdu iVokjh Hkh ugha feys fQj Jhuxj tkdj viuk rFkk nsoj dk esfMdy djok;kA iqu% iVokjh pkSdh x;h ysfdu iVokjh Hkh ugha feys ftl dkj.k vkt ekuuh; U;k;ky; esa izkFkuk i= is’k dj jgh gSA” The above extract para did not reveal that when the victim went to Srinagar and when she came again to Patwari Headquarter. As pointed out in the preceding paragraph, the evidence of the victim is that she went to Srinagar in the same night and on the next day in the morning she was medically examined. Though the report reveals that her brother-in-law was medically examined on 20.06.2001. As the case pertains to the District Rudraprayag, the victim instead of going to Rudraprayag went to Srinagar. The Patti Patwari who is also the Investigating Officer of this case has categorically stated that on 20.06.2001 he was present in the Chowki in the morning 7:00 to 8:30 a.m. He went for a few moments to the market during the course of the day. Remaining time he remained in the Patwari Headquarter Chowki. He has denied that during the course of the day, Dayal Lal, victim, Devi Lal and Harish Lal came to his headquarter. Thus the explanation offered by the prosecution for the delay belied by his own witnesses. The matter was reported by inordinate delay. As I have pointed out that when the victim was examined by the medical officer, the victim and Harish Lal PW2 have stated to the medical officer that they have received the injuries by some miscreants on 19.06.2001. It is also pertinent to mention here that the doctor has written in the medical certificate that the victim has stated that the injuries were caused by some miscreants. She was medically examined on 21.06.2001 at about 10:00 a.m. Thereafter, the report was lodged indicating the name of the appellant in this case. Thus it is evident that there is embellishment, improvement and implication in this report prepared by some Advocate. Thereafter, the report was filed before the Magistrate. Thus the delay is fatal to the prosecution in this case. 17. In view of the above, the testimony of victim PW1 and Harish Lal PW2 is not credible and cogent and there is no other corroborative piece of evidence to substantiate the factum of incident on the date of the incident. 18. In view of the foregoing discussion and on the basis of the aforesaid evidence, I am of view that it would not be safe to convict the appellant. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting and sentencing the appellant. Hence, the appeal is allowed and the conviction and sentence against the appellant awarded by the trial court are set aside. The appellant is acquitted from the charges levelled against him. He is on bail. He shall be released forthwith, if not wanted in any other case. 19. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months. (J.C.S. Rawat, J.) Dated 24th March, 2008 Shiv/VK