RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.735 OF 2001 (Old No.803 of 1991) Dayal Singh S/o Jawahar Singh, R/o Haripura, P.S. Kaladhungi, District Nainital … Revisionist Versus The State … Respondent Smt. Pushpa Joshi, Adv. for the revisionist Sri Harish Pujari, Addl. G.A. for the State Dated: December 16, 2008 HON. DHARAM VEER, J. This criminal revision, preferred by the revisionist under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 14.05.1991 passed by Sessions Judge, Nainital in Criminal Appeal No.91 of 1988, Dayal Singh Vs. State, whereby the learned Sessions Judge has confirmed the judgment and order dated 30.11.1988 passed by IInd Assistant Sessions Judge, Nainital in S.T. No.184 of 1987, State Vs. Dayal Singh, by which the revisionist was convicted u/s 376 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and was sentenced to seven years’ R.I. with fine of Rs.1,000/- and in default of payment of fine, one year’s further R.I. was awarded to him. 2. I have heard Smt. Pushpa Joshi, learned counsel for the revisionist and Sri Harish Pujari, learned Addl. G.A. for the State and perused the entire material available on record. 3. In brief, the facts of the case are that P.W.1 Smt. Rajo Bai lodged a report with the averments that on 2 11.12.1986, her husband was not at her hut which is situated on the plot of Sardar Mahendra Singh at about 2 kilometers from Garappu. At about 12:00 A.M. in the night, revisionist-accused Dayal Singh arrived at her hut and enquired about his maternal uncle (Dhula Singh), then she replied that her husband had gone to take another Chowkidar. Then the revisionist-accused asked her that whether she was alone, then she replied that she is alone and doing work of Chowkidar and she is not afraid of anyone. After that the revisionist-accused caught hold the victim and committed rape with her. At the time of said incident, she also received the injuries. Thereafter her husband came on 13.12.1986 and then she narrated the incident to her husband. With the same averments, the FIR was lodged by P.W.1 Smt. Rajo Bai at P.S. Kaladhungi, Distt. Nainital on 13.12.1986 at 12:15 P.M., i.e. Ex.Ka-1. On the basis of this FIR, Constable Clerk Devki Nandan prepared the Chik FIR, i.e. Ex.Ka-5. The necessary entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-6. The investigation of this case was entrusted to S.I. K.R. Kandpal (P.W.4). The victim Smt. Rajo Bai was medically examined on 13.12.1986 at 4:00 P.M. by P.W.5 Dr. Raj Luxmi and her medical report was also prepared, i.e. Ex.Ka-7. Supplementary report of victim Smt. Raju Bai is Ex.Ka-8. X-ray of victim was also conducted, x- ray report is Ex.Ka-9. The injuries of victim Smt. Rajo Bai were examined on 14.12.1986 at 1:45 P.M. at Civil Hospital, Haldwani and the report was also prepared, i.e. Ex.Ka-10. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-3. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet, i.e. Ex.Ka-4. 4. Learned CJM, Nainital has committed the case to the court of Sessions on 9.9.1987 after giving necessary copies to the revisionist-accused as required u/s 207 Cr.P.C. 3 5. The case was transferred by Sessions Judge, Nainital to IInd Assistant Sessions Judge, Nainital for disposal according to law. 6. Learned Addl. Asstt. Sessions Judge, Nainital framed the charge against the revisionist-accused Dayal Singh u/s 376/323 IPC on 1.12.1987. The charge was read over and explained to him who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution got examined P.W.1 Smt. Rajo Bai, victim of the case; P.W.2 Dhula Singh, husband of victim; P.W.3 Dr. Anil Sah, Pathologist; P.W.4 S.I. K.R. Kandpal, I.O. of the case; P.W.5 Smt. Raj Luxmi, who has medically examined the victim and P.W.6 Constable Devki Nandan Sharma, who prepared the Chik FIR and made necessary entry in the G.D. 8. After that the statement of the revisionist-accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. However, he did not produce any oral or documentary evidence in his defence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned IInd Assistant Sessions Judge, Nainital vide his judgment and order dated 30.11.1988 convicted and sentenced the revisionist-accused u/s 376 of IPC for seven years R.I. with fine of Rs.1,000/- and in default of payment of fine, one year’s further R.I. was awarded. Against the said judgment and order-dated 30.11.1988, the revisionist-accused preferred an appeal before Sessions Judge, Nainital, which too was dismissed by the judgment and order dated 14.5.1991. Feeling aggrieved, the revisionist-accused has preferred the present revision. 4 10. Before further discussion, it is essential to mention that victim Smt. Rajo Bai was medically examined by P.W.5 Dr. Raj Luxmi on 13.12.1986 at 4:00 P.M. and her medical report (Ex.Ka.7) was also prepared, which is as follows: - Breasts-developed. Axillary and pubic hairs present. Internal Examination- No mark of injury on external genitalia. Vagina admits two fingers easily, old tear of hymen present. Vaginal smear taken and sent for histopathological examination. For determination of age, X-ray of right wrist and elbow joint advised. Conclusion- Opinion about rape and age can be given later on when vaginal smear and x-ray report is available. After receipt of vaginal smear report (Ex.Ka-2) and x-ray report (Ex.Ka-9), P.W.4 Dr. Smt. Raj Luxmi prepared the supplementary report of victim Smt. Rajo Bai (Ex.Ka-8) which is also reproduced as under: - Report of Vaginal Smear by Pathologist- No spermatozoa seen in smear X-ray report by Dr. Anita Pant, Gynecologist X-ray of right elbow joint- Epiphysis of the bones around right elbow are fused with their respective diaphysis X-ray of right wrist joint- Epiphysis of the lower end of Radius and Ulna are fused with diaphysis Conclusion- No definition opinion can be given about rape as she is habitual to sexual intercourse. The age of Smt. Rajo Bai is about 19 years. The Medical Officer also examined the injuries found on the person of victim Smt. Rajo Bai on 14.12.1986 at 1:45 P.M. and prepared the report (Ex.Ka-10), which is as follows: - 1. Abrasion ½ x ½ cm inner side of upper lip at left side scabed reddish blue covering. 5 2. Scabed abrasion ½ x ½ cm right side of hip, reddish blue in colour 3. Scabed abrasion ½ x ½ cm on right side of knee, reddish blue in colour 4. Charring of hair present at lips Opinion-All injuries are simple caused by blunt object about 60 hours back and burning of hairs present 11. To prove the aforesaid medical reports, the prosecution got examined P.W.5 Dr. Smt. Raj Luxmi who has stated that on 13.12.1986, she was posted as Medical Officer at Women’s Hospital, Haldwani. On that day she had medically examined the victim Smt. Rajo Bai. After her medical examination she prepared the medical report, i.e. Ex.Ka-7. After receipt of Vaginal Smear Report and X-ray reports, she also prepared the Supplementary Medical Report, i.e. Ex.Ka-8. 12. The prosecution also examined P.W.3 Dr. Anil Sah who has stated that on 17.12.1986, he was posted as Pathologist in Civil Hospital, Haldwani. He has also proved the vaginal smear report prepared by him, i.e. Ex.Ka-2. 13. To further prove its case, the prosecution has examined P.W.1 Smt. Rajo Bai, victim of the case, who has stated that on the date of occurrence, her husband had gone somewhere to bring another Chowkidar and she was alone in the hut along with her one year’s daughter. Revisionist/ accused Dayal Singh came in her hut on the date of incident at about 12:00 o’clock in the night and at that time, she was warming herself by taking fire-heat. She recognized the revisionist-accused Dayal Singh in the light of fire. Revisionist/accused Dayal Singh enquired from her about his maternal uncle. Then she told him that her husband had gone to bring another Chowkidar. Then the revisionist-accused asked her that what would happen to her if somebody would attack. Then she told him 6 that she is not afraid of any one. The revisionist-accused then forcibly caught her hand. She tried to save herself and also raised alarm but there being no Abadi, no one came. In an attempt to save her, she received injuries and hairs were also burnt from the fire which was flaming in the hut. Even then the revisionist-accused did not leave her and committed forcible sexual intercourse with her and then he ran away. When her husband came back, then she narrated the entire incident to him. Then she dictated the report of the incident to Kishan Chand, i.e. Ex.Ka-1. After that her medical examination was conducted at Civil Hospital, Haldwani & Women’s Hospital, Haldwani and her x-ray was conducted at Rudrapur. 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 and believable. 14. P.W.2 is Dhula Singh, husband of victim, who has stated that on the date of incident, he had gone to bring Chowkidar. When he came back after two days, then his wife Smt. Rajo Bai informed him that revisionist-accused Dayal Singh has committed forceful sexual intercourse with her. Then his wife dictated the report to Kishan Chand before him and that report was given in the P.S. Kaladhungi. This witness was cross-examined 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. 15. P.W.4 is S.I. K.R. Kandpal, I.O. of the case, who has stated that on 13.12.1986, he was posted as S.I. at P.S. Kaladhungi. The investigation of this case was done by him. During the course of investigation, he prepared the site plan of the place of occurrence, i.e. Ex.Ka-3. After completing the investigation, he filed the charge sheet against the revisionist- accused, i.e. Ex.Ka-4. Chik FIR of this case was prepared by 7 Constable Devki Nandan, i.e. Ex.Ka-5. The entry was also made in the G.D. by Constable Devki Nanda, carbon copy of G.D. is Ex.Ka-6. 16. P.W.6 is Constable Devki Nandan who has stated that on 13.12.1986, he was posted at P.S. Ramnagar. The Chik FIR of this case was prepared by him, i.e. Ex.Ka-5. He also made necessary entry in the G.D., the carbon copy of G.D. is Ex.Ka-6. 17. After that the statement of the revisionist-accused was recorded u/s 313 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 falsely been implicated. However, he did not produce any oral or documentary evidence in his defence. 18. Smt. Pushpa Joshi, learned counsel for the revisionist-accused argued that as per the evidence discussed above, the case against the revisionist-accused is not proved beyond reasonable doubt. I do not find any force in the argument advanced by counsel for the revisionist as P.W.1 Smt. Rajo Bai, victim of the case, has specifically stated in her evidence that on the date of occurrence, her husband had gone somewhere to bring another Chowkidar and she was alone in the hut along with her one year’s daughter. Revisionist/accused Dayal Singh came in her hut on the date of incident at about 12:00 o’clock in the night and at that time, she was warming herself by taking fire-heat. She identified the revisionist-accused Dayal Singh in the light of fire. Revisionist/accused Dayal Singh enquired from her about his maternal uncle. Then she told him that he had gone to bring another Chowkidar. The revisionist-accused then forcibly caught hold her. She tried to save herself and also raised alarm but there being no Abadi, no one came forward to save her. In an attempt to save her, she received injuries and her hairs were also burnt from the fire which 8 was flaming in the hut. Even thereafter the revisionist- accused Dayal Singh did not leave her and committed forcible sexual intercourse with her and then he ran away. When her husband came back, then she narrated the entire incident to him. Then she dictated the report of the incident to Kishan Chand, i.e. Ex.Ka-1. The evidence of this witness is reliable, believable, natural and trustworthy. Her evidence is also corroborated with the evidence of P.W.2 Dhula Singh as well as from the medical evidence of P.W.5 Dr. Smt. Raj Luxmi and further from the medical report viz. Ex.Ka-7, supplementary medical report Ex.Ka-8 and her injury report Ex.Ka-10. Thus, as per the evidence discussed above, the case against the revisionist-accused u/s 376 IPC is proved by the prosecution beyond reasonable doubt. 19. Learned counsel for the revisionist-accused further argued that the FIR is delayed and delay in lodging the FIR has not been explained by sufficient cause. This argument also have got no force as the incident in question had occurred in the night of 11.12.1986 at about 12 o’clock and the husband of Smt. Rajo Bai namely Dhula Singh was not at home at that time as he had gone to bring another Chowkidar. When he came back on 13.12.1986, then she narrated the entire incident to him and then on the same day i.e. on 13.12.1986 at about 12:15 P.M., the FIR was lodged in the police station. Thus, the delay in lodging the FIR has been explained by sufficient cause. 20. It was further submitted on behalf of revisionist- accused that the oral evidence of P.W.1 Smt. Rajo Bai does not corroborate from the medical evidence as in the Vaginal Smear Report (Ex.Ka-2), no Spermatozoa was seen. This argument has also got no weight because as discussed above, the evidence of P.W.1 Smt. Rajo Bai is natural and believable evidence and her statement also inspires confidence. Even the rape was committed with her by the revisionist-accused 9 in the night of 11.12.1986 and her medical examination was conducted on 13.12.1986 at 4:00 P.M., i.e. after about 40 hours and she is a married lady. Since the medical examination of victim was conducted after about 40 hours of incident and then her vaginal smear was taken, hence if the spermatozoa is not found in the vaginal smear report, it does not go to create any doubt in the prosecution story. 21. In view of the aforesaid discussion, I do not find any illegality, incorrectness or impropriety in the impugned judgment and order dated 30.11.1988 passed by IInd Assistant Sessions Judge, Nainital which was subsequently confirmed by Sessions Judge, Nainital vide his judgment and order dated 14.5.1991. 22. For the reasons as recorded above, the revision is devoid of merits and is accordingly dismissed. The conviction and sentence of the revisionist-accused as discussed above is hereby affirmed. The revisionist-accused Dayal Singh is on bail. Let him be taken into custody forthwith in order to serve out the sentence as awarded against him. The period already undergone by the revisionist-accused during the period of trial or appeal, if any, shall be adjusted after verifying from the records. 23. Let a copy of this order be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) December 16, 2008 Rajeev Dang