RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.497 of 2001 (Old No.1987 of 1990) Jagdish @ Jagga S/o Antu R/o Vill. Bairagiwala, Post Office Harbartpur, P.S. Sahaspur, Distt. Dehradun …….….…. Appellant Versus The State …………… Respondent Dated: August 08, 2008 Sri Ramji Srivastava, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 24.09.1990 passed by Sessions Judge, Dehradun in S.T. No.137 of 1989, State Vs. Jagdish @ Jagga, whereby the learned Sessions Judge has convicted the appellant/accused Jagdish @ Jagga under Section 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to five years’ rigorous imprisonment. 2. I have heard Sri Ramji Srivastava, learned counsel for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Luxmi Chand (P.W.2) lodged a FIR at P.S. 2 Sahaspur, Distt. Dehradun stating therein that on 8.1.1989 at about 4:00 P.M., when his daughter Km. Mamtesh had gone to ease herself, then appellant/ accused Jagdish @ Jagga took Km. Mamtesh forcibly in the sugarcane field of Rana Inder Singh and there he committed rape with her. Thereafter, his daughter Km. Mamtesh came back home while weeping and narrated the incident to him (complainant), her mother Jagwati and brother Shyam Lal. It was further averted that when the complainant was going to lodge the report in the evening of 8.1.1989, then he was stopped by Village Pradhan Prem Chand, Ninha, Antu & Shyam Chand and they also assured him that they will get the matter solved. On the next day i.e. on 9.1.1989, he came to lodge the report. With the same averments, the FIR was lodged by P.W.2 Luxmi Chand at P.S. Sahaspur, Dehradun on 9.1.1989 at 9:10 A.M., the FIR is Ex.Ka-1. On the basis of this report, Chik FIR was prepared by Head Moharrir Ajay Pal Singh Rawat, i.e. Ex.Ka-5. The entry was also made in the G.D., the copy of G.D. is Ex.Ka-8. The investigation of the case was entrusted to P.W.4 S.O. S.C.P.Singh Tomar. The victim Km. Mamtesh was medically examined by P.W.4 Dr. Archana Srivastava on 9.1.1989 at 1:15 P.M. and medical report was prepared, i.e. Ex.Ka-6. Thereafter, the X-ray & Pathology report in respect of victim Km. Mamtesh was also prepared i.e. Ex.Ka-7. The I.O. during the course of investigation also inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-2. The I.O. also took in his possession the blood stained Salwar of victim Km. Mamtesh and prepared a Fard, i.e. Ex.Ka-3. The said Salwar of victim Km. Mamtesh was also sent for examination in the Forensic Laboratory. The Scientific Officer also gave his report i.e. Ex.Ka-9 and it 3 was opined that spermatozoa was found on the Salwar and blood spot of ‘B’ blood group on the said Salwar was also found. After completing the investigation, the I.O. submitted the charge sheet against the appellant/ accused Jagdish @ Jagga in the court u/s 376 IPC, i.e. Ex.Ka-4. 4. Learned Judicial Magistrate (First) Dehradun committed the case to the court of Sessions on 14.12.1989 after complying with the provisions of Section 207 Cr.P.C. 5. On 08.02.1990, learned Sessions Judge, Dehradun framed the charge against the appellant/ accused Jagdish @ Jagga under Section 376 IPC. The charge was read over and explained to the appellant/ accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Km. Mamtesh, the victim, P.W.2 Laxmi Chand, complainant and father of victim, P.W.3 Jagwati, mother of victim, P.W.4 S.O. S.C.P.Singh Tomar, I.O. of the case and P.W.5 Dr. Archana Srivastava, medical officer who has medically examined the victim. 7. Thereafter, the statement of the appellant/ accused Jagdish @ Jagga was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. However, he has admitted in reply to question No.12 that when he was going to ease himself, then victim Km. Mamtesh had chopped the 4 sugarcane. When he stopped her not to do so then Mamtesh came to beat him. Then he pushed her aside and thereafter he had gone to ease himself. However, he had not produced any oral or documentary evidence in his defence. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Dehradun vide his judgment and order dated 24.09.1990 has convicted and sentenced the appellant/accused Jagdish @ Jagga u/s 376 IPC and sentenced him to five years R.I. Feeling aggrieved by the aforesaid judgment and order dated 24.09.1990, the appellant/accused has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that victim Km. Mamtesh was medically examined on 9.1.1989 at 1:15 P.M. by P.W.5 Dr. Archana Srivastava and her medical report was also prepared i.e. Ex.Ka-6. The medical officer while examining the victim Km. Mamtesh found as follows: - “Breasts-Not Developed Public & axillary hair not developed. No mark of injury seen on the body and private part. P/V: Vaginal orifice admits one finger (little). Hymen intact. No bleeding present. Slight redness present. Vaginal smear taken and sent for examination. The medical officer also advised x-ray of wrist, elbow knee and ankle joint in respect of victim Km. Mamtesh. Thereafter, X-ray of victim Km. Mamtesh was also conducted and X-ray & Pathological report was also prepared i.e. Ex.Ka.7 by the medical officer and it was found in x-ray report as follows: - 5 1. Epiphysis medial epicondyle capitulum and Trochlea not yet fused, with shaft centre for lat. epicondyle not yet appeared, epiphysis head radius and ulna not yet fused. 2. Epiphysis lower end radius & ulna not fused center for pisiform not yet appeared. 3. Epiphysis around knee and ankle joint not yet fused, with their respective shape. Pathology: - Vaginal smear is negative for G.C. and spermatozoa. Conclusion: - 1. According to x-ray report, the age of the girl is below 10 years. 2. No definite opinion regarding rape can be given. 10. To prove its case, the prosecution has examined P.W.1 Km. Mamtesh, victim of the case, who stated her age as 11 years. She has stated that the incident in question took place before 1½ year, when at 4:00 P.M. she was going in the forest to ease herself. She also stated that appellant/accused Jagdish met her in the sugarcane field and there he committed rape with her. She also stated that due to the rape committed with her, she felt pain and blood also oozed out. After committing rape with her, appellant/accused Jagdish had gone from the place of occurrence and thereafter she came to her house and narrated the entire incident to her mother. On the next day, she went with her father to lodge the report and after that she was medically examined by the medical officer. This witness was cross-examined at length by the defence counsel but nothing has come out in her evidence which may create any doubt in her evidence. The evidence of this witness is reliable, believable and inspires confidence. 11. P.W.2 is Luxmi Chand, complainant of the case, who has stated that Km. Mamtesh is his daughter 6 and she is aged about 10 years. The incident is said to be taken place before one year and seven months. On that day, when he came back to his house in the evening, then his wife informed him that appellant/ accused Jagdish @ Jagga has committed rape with his daughter Km. Mamtesh. He also stated that when he reached at his house, at that time his daughter was weeping and her Salwar was stained with blood. He wanted to go to lodge the report on the same day but the villagers had stopped him and asked him that they would get the matter solved. Due to this reason, he did not lodge the report on the same day. On the next day, he went to P.S. Sahaspur along with his daughter and after getting the report scribed from Sadhu Ram, he lodged the report in the police station, i.e. Ex.Ka-1. The police personnel did not take the Salwar of the victim into possession on that day because his daughter was not having clothes to change in the police station. On the same day, he had gone to Dehradun at a hospital along with a police constable where his daughter was medically examined. This witness was also cross- examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 12. P.W.3 is Jagwati, mother of victim, who has stated that Km. Mamtesh is his daughter. The incident was happened before one year and six months and the time was 4:00 P.M. At that time, her daughter had gone to ease herself and she was at home and her husband Luxmi Chand had gone to work. Her daughter Km. Mamtesh came in the house after half an hour while weeping and crying. When she asked about the 7 matter from her daughter, then her daughter informed her that appellant/accused Jagdish @ Jagga committed rape with her. She also stated that Salwar of her daughter was stained with blood and her daughter was also complaining of pain in her back. Her husband Luxmi Chand came in the house in the evening and then she narrated the entire incident to him what she was told by her daughter. This witness was also cross- examined at length by the defence counsel but nothing has come out in her evidence which may create any doubt in her evidence. The evidence of this witness is also reliable and believable. 13. P.W.4 is S.O. S.C.P.Singh Tomar, I.O. of the case, who has stated that on 9.1.1989, he was posted as S.O. at P.S. Sahaspur. On that day, the case was registered in the police station in his presence and he started the investigation of the case on the same day. During the course of investigation, he recorded the statements of witnesses as well as of victim Km. Mamtesh and also prepared the site plan on the pointing out of victim Km. Mamtesh, i.e. Ex.Ka-2. He also took in his possession the blood stained Salwar of the victim, the Salwar is Ex.1. He took the said Salwar in his possession and prepared a Fard, i.e. Ex.Ka-3. The said Salwar (Ex.1) was also sent for the chemical examination. The statement of victim Km. Mamtesh was also recorded by the Magistrate u/s 164 Cr.P.C. After completing the investigation, he submitted the charge sheet in the court i.e. Ex.Ka-4. He also stated that Chik FIR of the case was prepared by Head Moharrir Ajay Pal Singh Rawat, i.e. Ex.Ka-5. 14. P.W.5 is Dr. Archana Srivastava who has stated that on 9.1.1989, she was posted as Medical 8 Officer at Women’s Hospital, Dehradun. On that day at 1:15 P.M., Km. Mamtesh was medically examined by her who was brought to her by Constable Heera Lal. She medically examined the victim Km. Mamtesh and also prepared the medical report i.e. Ex.Ka-6. The details of medical examination conducted on the person of Km. Mamtesh have been mentioned in para 9 of this judgment. The X-ray of victim Km. Mamtesh was also conducted for the purpose of determination of her age. In the x-ray, the age of the victim has been opined to be below 10 years. X-ray report was also prepared i.e. Ex.Ka-6 and the details of the said X-ray report have also been mentioned in para 9 of this judgment. She has also stated in her evidence that in the private part of the victim, the redness could be caused by the forcible intercourse and this redness could be possible before one day of the medical examination. 15. Thereafter, the statement of the appellant/ accused Jagdish @ Jagga was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. However, he has admitted in reply to Question No.12 that when he was going to ease himself, then victim Km. Mamtesh had chopped the sugarcane. When he stopped her not to do so then Mamtesh had come to beat him. Then he pushed her aside and had gone to ease himself. However, he had not produced any oral or documentary evidence in his defence. 16. Sri Ramji Srivastava, learned counsel for the appellant submitted that as per the evidence discussed above, the case against the appellant/accused u/s 376 9 IPC is not proved beyond reasonable doubt. He further submitted that the evidence of P.W.1 Km. Mamtesh does not inspire confidence. I do not find any force in the argument advanced by learned counsel for the appellant. As per the evidence discussed above, it is proved that victim Km. Mamtesh had gone on 8.1.1989 at about 4:00 P.M. in order to ease herself. At that time, appellant/accused Jagdish @ Jagga came in the sugarcane field of Rana Inder Singh and there he committed rape with her forcibly against her wish. This fact is also proved from the evidence of P.W.1 Km. Mamtesh, who was below 10 years of age at the time of incident. After the incident had occurred, the victim Km. Mamtesh came at her house and narrated the incident to her mother P.W.3 Jagwati. Thereafter, when the father of victim namely P.W.2 Luxmi Chand came home in the evening, then mother of the victim also informed him about the incident. On the next day i.e. on 9.1.1989, the report was lodged in the police station. Thus, the evidence of P.W.1 Km. Mamtesh gets corroboration from the evidence of P.W.2 Luxmi Chand and P.W.3 Jagwati. The evidence of P.W.1 Km. Mamtesh is reliable, believable, natural and inspires confidence. Therefore, the prosecution has been successful in proving that the appellant/accused Jagdish @ Jagga has committed rape with a minor girl, who was below 10 years of age, forcibly against her wishes in the sugarcane field of Rana Inder Singh on 8.1.1989 at 4:00 P.M. and thereby, he has committed an offence punishable u/s 376 IPC. 17. Learned counsel for the appellant further submitted that the Medical Officer P.W.5 Dr. Archana Srivastava has stated in her medical evidence with 10 regard to victim Km. Mamtesh that no definite opinion about the rape could be given and further no mark of injury is seen on the body and private part. Hence, it was submitted on behalf of the appellant that the medical report does not support the oral evidence, therefore, the case of the prosecution is not proved beyond reasonable doubt against the appellant/ accused. I do not find any force in this argument. P.W.6 Dr. Archana Srivastava, who has medically examined the victim Km. Mamtesh, has clearly stated in her evidence that in the private part of the victim, the redness could be caused by the forcible intercourse and this redness could be possible before one day of the medical examination. “yM+dh ds xqIrkax ij Redness dk dkj.k tcju d`r ls vk ldrh gSA ;g redness eqvk;us ls ,d fnu igys vkuk laHko gSA” In view of this evidence of medical officer, there is no contradiction in the medical and the oral evidence which may create any doubt in the prosecution case. Refuting the argument advanced by learned counsel for the appellant, learned brief holder for the State submitted a judgment of Hon’ble Apex Court in the case of B.C. Deva alias Dyava vs. State of Karnataka reported in (2008) 2 S.C.C. (Cri.) 253, and he relied upon paras 18, 19 and 20 which are reproduced as under: - 18. “The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any interference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynecologist pertaining to the 11 medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted. 19. Though the FSL Report marked as Ext. C-1 pertaining to the undergarments of the accused and the victim did not contain any seminal stains, yet the said report cannot be given any importance because the underwear of the accused was taken into possession by the police on the next day of the incident when he was arrested. There is no evidence brought on record to show that the accused handed over the same underwear to the police, which he was wearing on the day of incident or he had handed over some other underwear which was seized under mahazar (Ext. P-5) by the police. The possibility of absence of seminal stains on petticoat of the prosecutrix which she was wearing at the time of the incident, could not be ruled out due to the fact that the petticoat got drenched in the water and the seminal stains might have been washed away. 20. The trial court as well as the High Court have recorded the finding of guilt of the accused based upon proper appreciation 12 of the evidence led by the prosecution in this case. In view of the aforesaid discussion, we do not find any justified and justifiable ground to interfere with the conviction and sentence awarded by the trial court and confirmed by the High Court. The appeal is, therefore, dismissed.” 18. The case of the prosecution also gets support from the fact that the Salwar (Ex.1) of the victim Km. Mamtesh, which was recovered by the police during investigation and was sent for the chemical examination in the Forensic Laboratory, the Scientific Officer of the Forensic Laboratory has also given his report Ex.Ka-9, a perusal of which also makes it clear that spermatozoa and human blood was found in the said Salwar, which too corroborates the prosecution story. 19. From the above-said discussion and also after relying upon the aforesaid quoted judgment of Hon’ble Apex Court, the case u/s 376 IPC is fully proved against the appellant/accused Jagdish @ Jagga beyond reasonable doubt and the trial court has rightly convicted the appellant/accused Jagdish @ Jagga u/s 376 IPC and rightly sentenced him for five years R.I. and I also concur with the view taken by the trial court in convicting the appellant and sentencing him as discussed above. 20. For the reasons recorded above, the appeal is devoid of merits and is accordingly dismissed. The judgment and order dated 24.9.1990 passed by Sessions Judge, Dehradun is hereby confirmed. The 13 appellant is on bail. His bail bonds are cancelled. Let him be taken into custody in order to serve out the sentence. 21. Let a copy of this judgment be sent to the trial court concerned for compliance of the order. (Dharam Veer, J.) August 08, 2008 Rajeev Dang