HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1162 of 2001 (Old no. 468 of 1991) Chandra Singh S/o Sher Singh R/o village Kalsi, Patti, Udaipur Walla, Tehsil Kotdwar, District Pauri Garhwal. ------- Accused/appellant. Versus The State. ------- Respondent Sri Rahul Consul, holding brief of Sri Sudhanshu Dhulia, learned counsel for the appellant, Sri M.A. Khan, learned Brief Holder for the State. Dated: August 4, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 15.03.1991 passed by the learned Sessions Judge, Pauri Garhwal in Sessions Trial No. 49 of 1989 State vs. Chandra Singh, whereby the learned Sessions Judge has convicted the accused/appellant for the offence punishable u/s 376 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo 5 years’ rigorous imprisonment. 2. I have heard Sri Rahul Consul, holding brief of Sri Sudhanshu Dhulia, learned Senior Counsel for the appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the record of the Trial Court and the entire material available on record. 3. The prosecution case, in brief, is that on 12.05.1989 the complainant Chandan Singh Negi S/o Ghigla Singh submitted an application before the Sub Divisional Magistrate, Kotdwar with the averment that on 04.05.1989 at 7:00 a.m. he and his brother Bachan Singh had gone to village Nandpur from village Kalsi to attend marriage of his nephew. At that time the 2 niece of the complainant Km. Sundari-aged about 15 years’ and other minor children were present in their house. On that day i.e. on 04.05.1989 at about 10:00 a.m. when Km. Sundari had gone to the forest for grazing the cows, then the accused Chandar Singh Bisht S/o Sher Singh forcibly committed rape with Km. Sundari. On hearing screams of Km. Sundari-victim Smt. Kamli Devi had also reached at the place of occurrence. On seeing Smt. Kamli Devi the accused Chandra Singh fled from the place of incident hurling threats to her that if she would disclose the incident to any body then she will be killed. It is also averted that the accused/appellant had a licency gun at the time of commission of crime. It is averted in the report that when the complainant came back in the evening on 09.05.1989, then he came to know about the incident. On 10.05.1989 the complainant reported the matter to the Gram Pradhan. The resolution of the Gramsabha Ext. Ka-2 was also annexed with the First Information Report Ext. Ka-1. On the basis of this First Information Report, the S.D.M. Kotdwar ordered the Patti Patwari-Walla Udaipur to take necessary action after lodging a First Information Report. PW-4 Avwal Singh Rawat on the basis of the F.I.R. Ext. Ka-1 had prepared the Chik F.I.R., which is Ext. Ka-6. An entry was made in the General Diary, copy of the G.D. is Ext. Ka-7 on the record. The victim was sent for medical examination to the Govt. Hospital, Kotdwar and Dr. Usha Ramola-PW-3 prepared the Medical Report Ext. Ka-3 and the Supplementary Medical Report Ext. Ka-4 in this regard. During the investigation, the Patwari recorded the statements of the witnesses and after making spot inspection he prepared the site-plan of the place of occurrence, the site-plan is Ext. Ka-8. The Patwari also taken in his possession the bloodstained Trousers (Paijama)- of the victim and prepared a FARD Ext. Ka-9. Lateron the investigation was entrusted to PW-5 Ramswaroop Bachheti, Supervisor Kanoongo, who recorded statements of the remaining witnesses and completed investigation and after 3 completion of investigation, he submitted a charge sheet Ext. Ka-10 against the accused/ appellant. 4. The then learned Munsif Magistrate, Pauri Garhwal on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 06.11.1989. 5. Learned Sessions Judge, Pauri Garhwal after hearing the parties on 17.01.1990 framed the charge of offence punishable u/s 376 I.P.C. against the accused/appellant Chandra Singh. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. The prosecution, to prove its case, has examined PW-1 Km. Sundari-the victim, PW-2 Chandan Singh-complainant who lodged F.I.R. Ext. Ka-1 on the basis of the information received through the victim, PW-3 Dr. Usha Ramola, Medical Officer- who has medically examined the victim and prepared medical report Ext. Ka-3 and the Supplementary Medical Report Ext. Ka-4, PW-4 Sri Avwal Singh Rawat-Patwari who has investigated the crime at the first phase and PW-5 Ramswaroop Bachheti Supervisor Kanoongo- Investigating Officer of the case who has investigated the crime lateron, after it got transferred from the Patwari (PW-4) and submitted charge sheet against the accused. 7. After that the oral and documentary evidence was put to the accused/appellant in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. The accused/appellant did not produce any oral and documentary evidence in his defence. However, the Court has examined three witnesses i.e. CW-1 Hari Singh-Gram Pradhan, CW-2 Smt. Kamli Devi, who is said to the eye witness of the case and 4 CW-3 Dr. Ramesh Chandra Nainwal-Medical Officer, who has conducted X-Ray of the victim. 8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge Pauri Garhwal vide his judgment and order dated 15.03.1991 has convicted the accused/appellant for the offence punishable u/s 376 I.P.C. and sentenced him to undergo 5 years’ R.I. Aggrieved with the impugned judgment and order dated 15.03.1991, the accused/appellant has come up in the instant Criminal Appeal. 9. Before further discussions, it is pertinent to mention the medical evidence available on the record. On 12.05.1989 at 1:30 p.m. the victim Km. Sundari was medically examined by PW-3 Dr. Usha Ramola, Medical Officer at Govt. Hospital, Kotdwar. The injuries found on the person of the victim Km. Sundari are reproduced hereunder:- Local Examination:- No injury over perineum. 2 finger tight vagina & BPV through ovary may be menstrual blood. Labia minora swelling of both lips parted. Hymen was torn. Advised X-Ray wrist and elbow joint, vaginal smear not taken due to B/PV. The Medical officer has proved the Medical Report Ext. Ka-3. 10. On the basis of X-Ray Report, PW-3 Dr. Usha Ramola has also prepared supplementary report and in the Supplementary report the Medical Officer has opined as under:- According to the X-Ray Report of Radiologist, epiphysis of elbow joint fused but epiphysis lower side of radius ulna not fused. The girl is above 14 years’ but below 18 years’. 5 On general examination few scuffed abrasions found on back and breast. On local examination there is separation and swellings over labia minora. Hymen was torn. The doctor found that there is evidence of attempt of forceful intercourse. PW-3 Dr. Usha Ramola also proved the Supplementary Medical Report Ext. Ka-4. 11. To prove its case, the prosecution has examined PW-1 Km. Sundari- the victim, who has stated that the said incident took place about 16 months’ before. The accused/ appellant Chandra Singh had committed rape with her. At that time she had gone to the forest to graze the cows and the time was about 10:00 a.m. At the time of commission of rape the accused had shown her a TAMANCHA and threatened her to kill her if she would disclose the incident to anyone else. She has further stated that this incident was also seen by Smt. Kamleshwari Devi (her aunt), who had also seen the accused committing rape on her. On being seen by Smt. Kamleshwari Devi, the accused/appellant had run away. She has further stated that her father returned back on 9th from the marriage and then she narrated the entire incident to her father and her uncle (TAWOO). Thereafter she was taken to the Govt. Hospital Kotdwar by her uncle and she was medically examined there. In her cross-examination she stated that when the accused/appellant had committed rape on her at that time she was in menstruation period and her Trousers (Paijama) was also stained with the blood on account of menstruation. She has further stated that she had washed her bloodstained Paijama, after the incident, when she reached at her house. 12. PW-2 is Chandan Singh-complainant, who has lodged the First Information Report on the information received through PW-1 victim Km. Sundari. 6 13. PW-3 is Dr. Usha Ramola, Medical Officer who on 12.05.1989 at 1:30 p.m. examined the victim Km. Sundari at Govt. Hospital, Kotdwar and prepared the Medical Report Ext. Ka-2 and on the basis of the X-Ray report she also prepared the Supplementary Medical Report Ext. Ka-4. 14. PW-4 is Avwal Singh, Patti Patwari, who first of all on the orders of the S.D.M. Kotdwar commenced the investigation. During the course of investigation he prepared the Chik First Information Report, recorded statements of the witnesses and prepared the site plan. Thereafter, the investigation was transferred to PW-5 Ramswaroop Bachheti, Supervisor Kanoongo, who recorded the statement of remaining witnesses and after completing investigation, he submitted charge sheet against the accused/appellant. 15. The oral and documentary evidence was put to the accused/appellant in the form of questions u/s 313 Cr.P.C. who, in reply, has denied the allegations made against him and has stated that he has been falsely implicated in the case. The accused/appellant did not produce any oral and documentary evidence in his defence. However, the Court has called three witnesses i.e. CW-1 Hari Singh-Gram Pradhan, CW-2 Smt. Kamli Devi, who is said to be the eye witness of the case and CW-3 Dr. Ramesh Chandra Nainwal-Medical Officer, who has conducted X-Ray of the victim. CW-1 Hari Singh did not support the prosecution case and has stated that no such resolution was passed by the Gramsabha, as annexed with the F.I.R. Ext. Ka-1. It is further stated that he signed on some blank papers, but be did not prove the resolution Ext. Ka-2 annexed with the F.I.R., submitted by the complainant alongwith the F.I.R. Ext. Ka-1. CW-2 is Smt. Kamli Devi, who also not supported the prosecution case. This witness is said to be the eye witness of the incident and her name is mentioned in the F.I.R. and the victim in her evidence has also mentioned 7 her name as an eye witness. But CW-2 Kamli Devi did not support the prosecution case and stated that she did not see the accused committing rape on the victim Km. Sundari as alleged in the F.I.R. CW-3 is Dr. Ramesh Chandra Nainwal who has stated that on 12.05.1989 he was posted as Radiologist at the Combined Hospital Kotdwar and on that day he conducted X-Ray of Km. Sundari- the victim. He proved the X-Ray report Ext. C-2 and the X-Ray plate Ext. C-3. He has further submitted that after seeing the X-Ray plate he found epiphysis of lower end of radius (right) to ulna (right) were not fused. 16. Learned counsel for the accused/appellant has argued that there is only evidence against the accused/appellant is the evidence of Km. Sundari and rest of the witnesses, i.e. PW-2 Chandan Singh, PW-4 Patwasri Avwal Singh and PW-5 Ramswaroop Bachheti- Supervisors Kanoongo, are the formal witnesses. Even the Court Witness CW-2 Kamleshwari Devi, who is said to be the eye witness of the case, as her name is figured in the F.I.R. and her name is mentioned in the evidence of the victim as an eye witness of the crime, but this witness had not supported the prosecution version. It is further argued that the evidence of the victim PW-1 Km. Sundari is also not believable, reliable and it does not inspire confidence. It is vehemently contended that on the basis of the solitary evidence of PW-1 Km. Sundari which is also not believable and does not inspire confidence, the conviction is not possible. 17. Sri Rahul Cousul, learned counsel for the accused/ appellant has submitted that the evidence of PW-1 Km. Sundari does not inspire confidence. In this regard he has submitted that the evidence of Km. Sundari is not corroborated by the medical evidence and due to this reason the evidence of Km. Sundari is not reliable and believable as 8 Km. Sundari has stated in her evidence that rape was committed on her by the accused/appellant in the forest when she had gone in the forest to graze cows while in the medical evidence PW-3 Dr. Usha Ramola, Medical Officer in her evidence has stated that there is only evidence against the accused is of attempt of rape. Further in her cross-examination Km. Sundari has stated that when the accused/appellant had committed rape on her at that time she was in menstruation period and her Paijama were also stained with the blood of menstruation, but after the incident she washed the said Paijama. Thus, it is clearly established that rape was not committed on the victim Km. Sundari, because there is no medical evidence with regard to the rape committed on the victim. From the evidence discussed above and after examining all the evidence and hearing the counsel of both the parties, it reveals that the evidence of Km. Sundari does not inspire confidence due to the following reasons. :- i. That Km. Sundari has stated in her evidence that rape was committed on her by the accused/appellant in the forest when she had gone in the forest to graze cows, while in the medical evidence PW-3 Dr. Usha Ramola, Medical Officer in her evidence has stated that there is only evidence against the accused is of attempt of rape. Thus it is clearly established that rape was not committed on the victim Km. Sundari, because there is no medical evidence with regard to the rape committed on the victim; ii. That it was averted in the First Information Report and also in the statement of PW-1 Km. Sundari that Smt. Kamleshwari was present at the time of the alleged commission of crime and she had seen the accused committing rape on the victim, but when she was called by the Court and examined as Court Witness no.2 she did not support the prosecution case and she specifically stated that she did not see the 9 accused committing rape on Km. Sundari. Neither she told about the incident to the father of the victim nor to her uncle, thus it creates doubt in the prosecution case and in the evidence of PW-1 Km. Sundari. All the deposition made by the prosecutrix does not inspire confidence at any level, which is not reliable and believable. iii. It is alleged that at the time of medical examination the age of the victim was more then 14 years’ and below 18 years’. Learned counsel for the accused/ appellant has argued that two years’ margin would be given in coming into the conclusion of the age of the victim. Thus, after giving the benefit of 2 years in the upper age, the age of the victim would have been more than 18 years, therefore, she was major at the time of the said incident. 18. Learned counsel for the accused appellant has submitted that the only evidence against the appellant is the solitary evidence of PW.1 Km. Sundari and on the basis of the evidence discussed above, it does not inspire any confidence. In support of this argument, he has cited a judgment reported in 2003 (1) Supreme Court Cases, 465 “Joseph Vs. State of Kerala”. He has relied upon para 13 of this judgment 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 10 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.” 19. Learned counsel for the appellant further submitted that the evidence of the solitary witness should be accepted with caution. He further submitted that it is permissible 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. In these circumstances, and for the reasons discussed above, the evidence of PW-1 Km. Sundari does not inspire confidence; hence her evidence is not reliable and believable. Therefore, no reliance can be put on the evidence of PW-1 Km. Sundari. In these circumstances, the conviction of the accused/appellant on the solitary evidence of PW-1 Km. Sundari is not justified and as per the law. 20. Another salient aspect which also creates doubt in the prosecution case is that in the present case; the incident was said to have been taken place on 04.05.1989 at about 10:00 a.m. while the F.I.R. Ext. Ka-1 was lodged on 12.05.1989 at 08:30 a.m., the distance of the Patwari Headquarter from the place of occurrence is 4½ Kms, but no explanation has been given for the delay in lodging the FIR, which also proves the prosecution story doubtful and concocted. The delay in lodging 11 the F.I.R. has neither been explained in the F.I.R. nor in the evidence produced by the prosecution and that is fatal for the prosecution case. In support of this submission, learned counsel for the appellant cited a judgment rendered by the Hon’ble Supreme Court in the case of State of Karnataka v. Mapilla P.P. Soopi reported in (2003) 8 SCC 202. Reliance was placed on para-4 which is as follows: - “Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal.” 21. From the facts and circumstances of the case, it is established that the distance of the Patwari Headquarter from the place of occurrence is about 4½ km. and the incident said to have taken place on 04.05.1989 at about 10:00 a.m. while the First Information Report has been lodged on 12.05.1989 at 8:30 a.m. i.e. after about 8 days’ from the said incident, but the delay in lodging the First Information Report has also not been explained, which is also doubtful. 22. From the evidence discussed above and after considering the facts and circumstances of the case and on the basis of the judgment of the Apex Court (supra) the prosecution has failed to prove its case against the accused/appellant beyond reasonable doubt. The learned Sessions Judge has erred in convicting the accused/appellant for the offence punishable u/s 376 I.P.C. and sentencing him as mentioned above. My view is not concurred with the view taken by the learned Sessions Judge in convicting the accused/appellant and sentencing him as above. 23. For the reasons recorded above, the appeal preferred by the accused/appellant Chandra Singh deserves to be allowed 12 and the judgment and order dated 15.03.1991 passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial no. 49 of 1989 State vs. Sri Chandra Singh liable to be set-aside and on the basis of the discussions above the accused/appellant is entitled to be acquitted. 24. Accordingly, the appeal is allowed. The judgment and order dated 15.03.1991 passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial no. 49/1989, is hereby set- aside. The accused/appellant Chandra Singh is acquitted of the charge levelled against him. The accused/appellant is on bail he needs not to surrender, his sureties are discharged. 25. Let a copy of this judgment, alongwith the record of the Court below be sent back to the Trial Court. (Dharam Veer, J.) 04.08.2008 NCM: