IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.277 OF 2001 Praveen Kumar S/o Madan Lal ……… Appellant Versus State of Uttarakhand .……… Respondent Dated: August 26, 2010 Mr. Pooran Singh Bisht, learned amicus curiae for the appellant Mr. Amit Bhatt, learned Addl. GA for the State 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 18.4.2001 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No.13 of 1997, State v. Praveen Kumar, whereby the learned Sessions Judge convicted the appellant-accused under Section 354 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of two years. However, the appellant-accused was not found guilty of the charges punishable under Section 376/511 of IPC and he was acquitted by the trial court in the same sections. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that on 22.1.1996 Smt. Rajni lodged a First Information Report 2 at P.S. Muni-Ki-Reti alleging therein that today at about 3:30 PM she was cleaning utensils in the kitchen. Adjacent to her room, Narendra was living in a room as a tenant. His friend, namely, Praveen Kumar (the appellant herein) was lying on his bed in his room where he had made her daughter Km. Shobha, aged about three years, to lie upon him. The complainant thought that the appellant is playing with her daughter. After some time when her daughter cried, she entered into his room and found that the appellant-accused was trying to attempt commit rape with her daughter. Meanwhile, her brother Komal also came there and both of them picked up the girl from his bed. She alleged that panty of her daughter was wet. Thereafter, the appellant-accused ran away from the place of occurrence. With these averments, the present FIR was lodged by PW7 Smt. Rajni Devi, which is Ext.Ka-3. On the basis of this FIR, Chik FIR of the case was prepared by C/c Kamleshwar Prasad, i.e. Ext.Ka-4. Necessary entries in the G.D. were also made by him, carbon copy of which is Ext.Ka-5. Initially, the investigation of this case was entrusted to PW9 Tej Pal Singh, which later on was transferred to PW10 Man Singh. The prosecutrix Km. Shobha was sent to Suman District Hospital, Narendranagar on 22.1.1996, where she was medically examined by PW2 Dr. Gulab Gurjar at 9:45 PM, who after her medical examination, prepared the medical report, i.e. Ext.Ka-2. On the same day, appellant-accused Praveen Kumar was also medically examined by PW1 Dr. S.K. Gupta, who after his medical examination, prepared the medical report Ext.Ka-1. During the course of investigation, the I.O. recorded the statement of witnesses and inspected the place of occurrence and prepared the site-plan, i.e. 3 Ext.Ka-9 and on completion of investigation, he filed the charge sheet against the appellant-accused u/s 376/511 of IPC. That charge sheet is Ext.Ka-12. 4. After receiving the charge sheet, learned Chief Judicial Magistrate, Tehri Garhwal committed the case to the court of Sessions on 21.3.1997, after giving necessary copies to the appellant/accused as provided u/s 207 Cr.P.C. 5. On 2.5.1997, learned Sessions Judge, Tehri Garhwal framed the charge of offence punishable under Sections 376/511 of IPC against the appellant- accused. The charge was read over and explained to the appellant-accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW1 Dr. S.K. Gupta, who medically examined the accused and prepared the medical report Ext.Ka-1, PW2 Dr. Gulab Gurjar, who medically examined the prosecutrix and prepared the medical report Ext.Ka-2, PW3 Komal Singh, PW4 Bhagat Man, Scriber of the report, PW5 Const. Kamleshwar, who prepared the Chik FIR and made entry in the G.D., PW6 Dr. Vijay Bhola, PW7 Smt. Rajni Devi, mother of the prosecutrix and complainant of the case, PW8 Km. Shobha, victim, PW9 Tej Pal and PW10 Man Singh, Investigating Officers of the case. 7. Thereafter the statements of the appellant- accused were 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. 4 However, he has not produced any oral or documentary evidence in defence. 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Sessions Judge, Tehri Garhwal vide his judgment and order dated 18.4.2001 convicted and sentenced the appellant-accused as mentioned above. Against the said judgment and order, the appellant- accused have preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention the medical report of Km. Shobha, which is reproduced as under:- “External Examination – There is no sign and marks of any injury on any part. Examination of Private Parts – There is no sign and mark of any injury on private parts. Hymen intact. Swab taken for vaginal smear for presence of spermatozoa. Adv. X-ray of both writs and elbows. The M.L. Report will be given after getting above report. Underwear solid and handed over to constable concerned.” 10. Supplementary report Ext.Ka-6 of the prosecutrix was also prepared, which is reproduced as under:- Report:- Slide stained and examined microscopically. No spermatozoa present. 11. On the same day at 8:30 PM, appellant- accused Praveen Kumar was also medically examined 5 by PW1 Dr. S.K. Gupta, who found the following injuries on his person:- i) Abrasion 1 cm x 0.5 cm on nasal bridge. ii) Contusion red 3 cm x 0.5 cm on left side of face 4 cm away from angle of mouth. iii) Red contusion 3 cm x 3.5 cm on and around sternal notch. iv) Red contusion 8 cm x 6 cm on left side of back 5 cm below left shoulder. v) Red contusion 4 cm x 3.5 cm x 7 cm below inferior angle of scapula right. vi) Contusion swelling 4 cm x 5 cm at base of right thumb. vii) Abrasion 1 cm x 0.5 cm on dorsum of distal phalanx of second middle finger. viii) Abrasion 1.5 cm x 1 cm on outer and lower part of left patella. ix) Red contusion on right and left both whole buttocks. x) Red contusion 6 cm x 5 cm on back of upper thigh. xi) Abraided contusion of left third toe. xii) Contusion 3 cm x 2 cm on outer aspect of dorsum of right foot. xiii) Abrasion 1 cm x 0.5 cm on dorsal of right foot at MP joint of great toe. xiv) Contusion red of right knee. Opinion:- 1) Injuries are simple in nature. Fresh in duration. Injuries no.1, 7, 8, 11 and 13 caused by friction against hard and rough surface. Rest by hard and blunt object. 6 2) Smear Slides (two) sealed and handed over to C.P. concerned for pathology examination. 3) Underwear light blue sealed and handed over to C.P. concerned. 12. To prove the above report, the prosecution has examined PW1 Dr. S.K. Gupta, PW2 Dr. Gulab Gurjar and PW6 Vijay Bhola. PW1 Dr. S.K. Gupta has conducted the medical examination of appellant Praveen Kumar. He has proved the report Ext.Ka-1. PW2 Dr. Gulab Gurjar has medically examined the prosecutrix and has proved the medical report Ext.Ka- 2. PW6 Dr. Vijay Bhola has stated that on 2.2.1996 he received two dry slides of Km. Sobha. He examined the same and no spermatozoa were found in it. He has proved the report Ext.Ka-6. On the same day, he also received two dry slides of the accused. On examination, no spermatozoa were found on it. He has proved the report Ext.Ka-7. 13. In order to prove its case further, the prosecution has examined PW3 Komal Singh who has not supported the prosecution case and has been declared hostile. 14. PW4 Bhagat Ram is the scriber of the report. He has proved the report Ext.Ka-3. 15. PW5 Constable Kamleshwar has prepared the Chik FIR of the case and also made entries in the G.D. He has proved the Chik FIR Ext.Ka-4 and carbon copy of G.D. Ext. Ka-5. 7 16. PW7 Smt. Rajni is the complainant of the case. She has reiterated the version of FIR lodged by her in the police station. She has proved the report Ext.Ka-3. 17. PW8 Km. Shobha is the eyewitness of the case. Her statement was recorded on 17.3.1999 and at the time she was 7 years of age. She has stated that the appellant-accused was known to her. On the date of incident, the appellant-accused took her in his room. She had started crying whereupon her maternal uncle had come. Her panty had become wet by the water which the appellant-accused was drinking. Thereafter her mother had come. Her mother had abused to the appellant-accused. The appellant-accused had not run from the place of occurrence. Her mother and maternal uncle had taken her from his house. She further deposed that the appellant-accused had done nothing with her. She had not received any injury on her person. In her cross-examination she stated that she is deposing as told to her by her mother. 18. PW9 Tej Pal Singh is the Investigating Officer of the case. He has stated that the preliminary investigation of the case was entrusted to him. The victim was sent for medical examination. A letter to this effect was written by him. He has proved the letter Ext.Ka-2. During the course of investigation, he recorded the statement of witnesses and inspected the place of occurrence and prepared the site-plan Ext.Ka- 8 9. He has also proved the G.D. entry Ext.Ka-10 of taking into possession the panty of the victim. He further stated that thereafter the investigation of the case was entrusted to PW10 S.I. Man Singh. 19. PW10 Man Singh is the second Investigating Officer of the case. He stated that the investigation of the case was entrusted to him on 7.3.1996. He has filed the charge sheet in the case, which is Ext.Ka-12. 20. Thereafter the statements of the appellant- accused were 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 has not produced any oral or documentary evidence in defence. 21. Sri Pooran Singh Bisht, learned amicus curiae appearing for the appellant argued that the prosecution has not proved the case against the appellant-accused beyond reasonable doubt. I find force in the argument put forth by learned amicus curaie due to following reasons:- i) That PW3 Komal Singh is the only independent witness of the case. Though he is the maternal uncle of the prosecutrix but he has not supported the prosecution case and had been declared hostile. ii) That no injury was found either in the person or on the private parts of the prosecutrix by the medical officer. Her hymen was also found intact. Further, as per reports Ext.Ka-6 and Ka-7, no spermatozoa was present on the slides of vaginal smear of the prosecutrix as well as 9 on the slides of smear prepared of appellant Praveen Kumar. iii) In her statement, the prosecutrix has clearly stated that the appellant-accused had done nothing wrong with her. She has not made any allegation against the appellant that the appellant outraged her modesty, which transpires that the appellant had not outrage the modesty of prosecutrix. iv) That as many as 14 injuries was found on the person of the appellant by the medical officer and, according to medical officer, these injuries could be caused by beating, which shows that that the alleged incident was not happened in such a way and in such a manner as stated by the prosecution. 22. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and other circumstances, it is clear that the prosecution has not disclosed the true genesis of the occurrence and has thus not presented the true version. The prosecution has been failed to prove the case against the appellant beyond reasonable doubt under Section 354 of IPC. As such, the learned trial court erred in holding the appellant guilty and convicting him under the aforesaid section and the impugned judgment and order of the trial court, in view of the above narrated evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 23. Accordingly, the appeal is allowed. The judgment and order dated 18.4.2001 passed by 10 Sessions Judge, Tehri Garhwal in Sessions Trial No.13 of 1997, State v. Praveen Kumar, is hereby set aside. Consequently, the conviction and sentence of the appellant, which has been discussed above, is also set aside. The appellant is on bail. He need not surrender unless required in any other case. 24. A copy of this judgment along with the record shall be sent back to the trial court concerned for compliance forthwith. (Dharam Veer, J.) 26.8.2010 RG