IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 259 of 2001 (Old No. 2150/1992) Suresh S/o Omeshwar Prasad, R/o Kotdwar, P.S. Kotdwar, Distt. Pauri Garhwal And others. .…. Appellants/Accused Versus State …………… Respondent April 15, 2009 Mr. Nand Prasad, Advocate for the appellant no. 1. Ms. Geeta Parihar, Amicus Curiae for the appellants no 2 to 4. . Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 12.11.1992 passed by the Assistant Sessions Judge, Pauri Garhwal in Sessions Trial No. 18 of 1989, State v. Suresh & Ors., whereby the learned Assistant Sessions Judge has convicted the appellant/accused Suresh under Section 376 of Indian Penal Code, 1860 (for short, I.P.C.) and appellant/co- accused Smt. Bhama Devi under Section 366 I.P.C. and appellants/co-accused Belamdas and Gayaloo under Section 366 read with Section 34 I.P.C. By the aforesaid judgment and order, the appellant/accused Suresh has been sentenced to undergo 10 years’ R.I. along with a fine of Rs. 2000/- and in case of default of payment in fine further 6 months’ R.I. has been ordered, while appellants/co-accused Smt. Bhama Devi, Belamdas and 2 Gayaloo, each of them has been awarded with punishment of three years’ R.I. along with fine of Rs. 1000/- and in case of default in payment of the said amount, each of them has been ordered to undergo extra three months’ R.I. 2. In brief, the prosecution case is that PW-2 Suraj Lal has lodged an FIR with the Patwari, Patti Pendulsue on 31.10.1988 with the averment that he went to village Simkhet on 25.9.1988 for labour work of mason (mistri) leaving behind his wife Sumati Devi (PW-1), aged about 21 years, at his house in village Ayal and when he returned in the evening of 11.10.1988, his wife was not at his house. He tried to find out his wife at her paternal home in village Mirchora, Patti Aswalsue and other places, but she could not be traced. When he returned to his native village on 21.10.1988, he came to know that appellants/accused Belamdas @ Premdas @ Prem Sigh, Smt. Bhama Devi and Gayaloo had taken her wife on 11.10.1988 to Kotdwar, where they sold her and many people had seen her wife while she was being taken to Kotdwar. 3. With aforesaid averments the FIR Ex. Ka-1 was lodged by the PW-2 Suraj Lal, husband of the victim. On the basis of this report, the chick FIR Ex. Ka-4 was prepared by the Patwari, PW-4 on 31.10.1988 at 4.30 PM. Necessary entry was also made by Patwari in the GD. Copy of the GD is Ex. Ka-5. PW-4, Thep Singh Negi, Patwari investigated the matter. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification NO. 494/VIII-418-16 dated 7/3/1916). The I.O. recovered the victim Sumati Devi along with appellant/accused Suresh on 18.11.1988 from mohalla 3 Mayakund, Rishikesh where they were living in a rented house of Smt. Ranu Devi. The recovery memo was prepared by the I.O. (Patwari), which Ex. Ka-2. Thereafter victim was taken to Female Hospital, Pauri Garhwal, where she was medically examined on 19.11.1988 and the medical report Ex. Ka-8 was prepared by the Medical Officer of the said hospital. Thereafter victim Sumati Devi was given in the supardgi of her father Indramani. Supargdinama is Ex. Ka-3. During the course of investigation, the I.O. also inspected the place of occurrence and prepared the site plan Ex. Ka-6. Statement of the victim under Section 164 Cr.P.C. was got recorded before S.D.M., Pauri. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-7 against the appellants/accused under Section 366, 368, 376 & 109 of I.P.C. 4. Learned Munsif Magistrate, after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 4.4.1989. 5. Learned Sessions Judge framed the charges against the appellant/accused Suresh under Section 376 I.P.C. and against the appellants/accused Bhama Devi, Belumdas and Gayaloo under Section 366 read with Section 34 of I.P.C. The charges were read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. Thereafter learned Sessions Judge transferred the case to the Assistant Sessions Judge for disposal according to law. 4 6. To prove its case, the prosecution examined PW-1 Sumati Devi, the victim; PW-2 Suraj Lal, husband of the victim; PW-3 Preetam Lal, in whose house victim and her husband Suraj Lal were living in village Ayal Patti Pendulsue and PW-4 T.S. Negi, Patwari who has investigated the case. 7. Thereafter, the statements of each of the appellants- accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. However, in defence they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence on record, the learned Assistant Sessions Judge, Pauri Garhwal vide his judgment and order dated 12.11.1992 convicted the appellants/accused and sentenced them as discussed above. Against the aforesaid judgment and order dated 12.11.1992, the appellants/accused have preferred the present appeal. 9. I have heard Mr. Nand Prasad, learned Counsel for the appellant no. 1, Ms. Geeta Parihar, learned Amicus Curiae for the appellants no. 2 to 4 and Mr. M.A. Khan, learned Brief Holder for the State and have carefully perused the entire material available on the record. 10. Before any further discussion, it would be pertinent to mention here the medical report Ex. Ka-8 which was prepared on 19.11.1988 at 6 PM by the Medical Officer of Female Hospital, Pauri Garhwal. The genuineness of this medical report is admitted by the defence counsel with the 5 endorsement thereon that ‘formal proof of the document dispensed with’. The above-mentioned medical report is reproduced as under: “Height – 143 cm Weight - 42 kg Teath - 7/7 = 28 7/7 Both breasts are well developed, Axillary hairs are fine, seanty, brown. No marks of injury present over any part of the body. P/v examination – Pubic hairs are present, blackish in colour. Old healed tear of hymen present. Vaginal orifice admits two fingers easily. Uterus size normal. No marks of injury present over private part. Vaginal smear taken & sent to the pathology deptt. Of Distt. Hospital for examination of spermatozoa & gonococci. The lady is being sent to Radiologist, Distt. Hospital for X ray of elbow, wrist, knee & ankle for assessment of age with the same Patwari Shri T.S. Negi. Opinion – Lady is habitual of sexual intercourse and no opinion regarding rape can be given.” 11. PW-1 Sumati Devi, the victim in her deposition, has stated that she got married to Suraj Lal (PW-2) three years ago, who is a mason (mistri) by profession. Her husband used to go outside the village for 5 to 7 days in connection with his work and she used to live alone in her house at that time. She was living in the house of Preetam Lal. She used to sit with appellant/accused Bhama Devi who often visited her house. She had gone to Pendul bazaar along with Bhama Devi from where they went to Kotdwar by bus. When she reached Kotdwar, she was taken to the hut of appellant/accused Suresh by other co-accused Belamdas and Gayaloo. Belamdas and Gayaloo had gone somewhere from the address of Suresh. Thereafter appellant Suresh had taken her to forest where he raped her. She stayed there for three days. Thereafter she was taken to a number of other places and lastly at Mayakunad, Rishikesh, where she stayed with Suresh for a month. She was beaten up and raped by the 6 appellant/accused Suresh throughout this period. The victim Sumati Devi has further stated that Patwari (PW-4) recovered her from the house of Suresh. Thereafter she was medically examined. Her statement was also recorded by deputy sahab. After that she was given in the supardgi of her husband. In her cross-examination, she has stated that from Pendul bazaar she went to Kotdwar by bus. She was not aware that how many passengers were in that bus and the name of places in the route to Kotdwar. She admitted that she had stated before the deputy sahab that four persons including the appellants/accused Suresh, Belamdas and Gayaloo had committed rape with her against her wishes. But she did not state this fact before the Patwari. 12. PW-2 Suraj Lal, husband of the victim, has stated in his deposition that he got married to Sumati Devi eight months ago when this incident took place. He had gone to village Simkhet for labour work. When came back on 11.10.1988, he did not find his wife at his house. Then he went to paternal house of his wife in her search. When returned to his village on 21.10.1988, he was told by the villagers that Belamdas, Gayallo and Bhama Devi have taken her wife to some unknown place. Then he lodged the FIR Ex. Ka-1. After some days, Patwari recovered his wife from the house of appellant/accused Suresh. Fard of recovery Ex. Ka-2 was prepared. Thereafter both his wife and Suresh were taken to Pauri. After her medical examination, she was given in his supardgi and that supardginama is Ex. Ka-3. 13. PW-3 Preetam Lal has deposed that Suraj Lal (PW-1) is doing the work of mason (mistri), who often goes out of the village in connection with his work. This witness has further stated that Sumati Devi disappeared from the 7 village in the morning of 10.10.1988 and he came to know this fact afterwards that Belamdas, Bhama Devi and Gayaloo had taken Sumati Devi to Kotdwar, where they sold her. When Suraj Lal came back, he searched his wife, who could not be traced. Then Suraj Lal lodged the report. In his cross-examination, this witness has stated that Suraj Lal along with his wife Sumati Devi was living on the first floor of his house. He did not see Sumati Devi while she going but he heard about this from the villagers. 14. PW-4 T.S. Negi, Patwari, who has investigated the case, has stated in his deposition that he received the report Ex. Ka-1 from Suraj Lal (PW-2), on the basis of which he prepared the chick FIR Ex. Ka-4. Thereafter he made the necessary entry in the GD and true copy of the GD is Ex. Ka-5. He recorded the statements of the witnesses during the course of investigation. On 18.11.1988, he recovered the victim at Mayakund, Rishikesh from the room of Suresh, which he had taken on rent from Ranu Devi. Thereafter he prepared the fard Ex. Ka-2. On 19.11.1988, Sumati Devi was medically examined and thereafter she was given in supardgi of her father and that supardginama is Ex. Ka-3. After completing the investigation, he filed the chargesheet against the appellants/accused. That chargesheet is Ex. Ka-7. 15. Thereafter, the statement of each of the appellants- accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. However, they did not produce any documentary or oral evidence in the defence. 8 16. Learned Counsel for the appellant no. 1 as well as learned Amicus Curiae for the appellants no. 2 to 4, both of them argued that on the basis of the evidence discussed above, no case against the appellant/accused Suresh under Section 376 I.P.C. and appellant/co-accused Smt. Bhama Devi under Section 366 I.P.C. and appellants/co- accused Belamdas and Gayaloo under Section 366/34 I.P.C. is made out inasmuch as the appellant/accused Suresh and Sumati Devi, both were the consented parties and Sumati Devi, who was undisputedly a major on the date of the incident, had cohabited with the appellant/accused Suresh as per her own wish. I find force in the argument of the learned Counsel for the appellants/accused for the reasons recorded below: (i) That the victim Sumati Devi travelled a distance of nearly 150 kms from her village Ayal to Kotdwar and further to mohalla Mayakund at Rishikesh, from where she was recovered along with appellant/accused Suresh where they were living in a rented house. That the victim first went to Pendul bazaar and from there she went to Kotdwar by bus. Thereafter she went to Rishikesh in the company of Suresh. In this way, she went through a number of places including densely populated cities like Kotdwar, Nazibabad, Haridwar, etc. But she did not raise any alarm nor she complained to anybody in the course of journey. This conduct of the victim shows that she accompanied the appellant Suresh on her own wish. (ii) That as per her own admission, Sumati Devi started her journey from village Ayal to Pendul bazaar and then to Kotdwar accompanied by Bhama Devi, Belamdas and Gayaloo but Suresh was not with her. This fact goes to establish 9 that it was her own idea to join Suresh at Kotdwar. (iii) That victim Sumati Devi stayed with appellant Suresh at Mayakund, Rishikesh for more than a month in a rented house. She went their crossing through densely populated cities. But she never made any complaint to anybody in her way to Rishikesh nor did she complained to her landlady Smt. Ranu Devi and this fact further reveals that she stayed with Suresh on her own wish. (iv) That victim was undisputedly 21 years of age and was thus major at the time of incident. (v) That the deposition of victim does not inspire confidence inasmuch many contradictory facts have surfaced on the record. Sumati Devi in her deposition has stated that appellant Suresh used to beat her badly in order to have sex with her, but in the medical report it has come that no injuries either on her body or on her private parts were found. Secondly, she has stated in her cross-examination that she had told the deputy sahab that four persons including the appellants Suresh, Belamdas and Gayaloo raped her, but she did not tell this fact to Patwari (PW-4), the I.O. of the case. Also, she nowhere mentioned the name of fourth person who committed rape with her. Thirdly, it has come in her cross-examination that she went to deputy sahab after 10 to 12 days of her recovery by the Patwari. But later on she says in her cross-examination that she regained consciousness when she reached before the magistrate sahab. Moreover, she has nowhere alleged that she was forcibly taken to Kotdwar 10 by appellants Bhama Devi, Belamdas and Gayaloo. Rather to a suggestion she replied that Bhama Devi did not use to incite her to go outside the house. Thus, the deposition of Sumati Devi is not reliable and the same does not inspire the confidence and the appellants are entitled to get the benefit of doubt. 17. Learned Counsel for the appellants placed their reliance on the judgment delivered by the Hon’ble Apex Court in the case of Narayan alias Naran v. State of Rajasthan reported in (2007) 6 SCC 465. Para 11, 12, 13, & 15 of this verdict are relevant and are reproduced as under: “11. In the cross-examination the prosecutrix (PW 3) stated that she boarded the trolley at about 5 o’clock in the evening and by 7 o’clock they reached Singhpur Village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the tractor happily. It is not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ext.P-5) she stated that the accused committed rape on her thrice but in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on kankar (rough way). She did not state that she offered any resistance though she was physically very strong. Medical report (Ext.P-1) says that there were no injuries on the body of the prosecutrix (PW 3). There were no injuries on her private part. It is ultimately opined that “no definite opinion can be given regarding rape, however, she is habitual to sexual intercourse”. In the circumstances, is it possible to believe that the prosecutrix (PW 3) has been subjected to rape twice by the accused as alleged? In the first information report (Ext.P-5) it is stated that the prosecutrix (PW 3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according to the prosecutrix (PW 3) was driving the tractor from Singhpur to Bharkiya crossing through a 11 number of villages. It is not stated by the prosecutrix (PW 3) that she made any attempt to get down from the tractor at any point of time. On the other hand, it is stated by her that she sat in the tractor happily. 12. Yet another important aspect of the matter, in the first information report and as well as in her evidence the prosecutrix (PW 3) stated that she revealed the entire episode of committing rape on her by the accused to Smt Tejkanwar (PW 6) in whose house in Akodiya Village she slept on the fateful night. She also state about the accused’s snatching of Rs.1000 from her and also some jewellery. Smt Tejkanwar (PW 6) in her evidence did not state that the prosecutrix (PW 3) narrated the incident of rape committed on her by the accused to her. The evidence of the prosecutrix (PW 3) if full of material contradictions. There is no corroboration whatsoever from any of the witnesses, more particularly in the evidence of Smt Tejkanwar (PW 6) who is a material witness. It is true, the evidence of the prosecutrix (PW 3) itself, if acceptable, is sufficient to establish the charge against the accused but her evidence is so artificial which cannot be accepted. 13. In the circumstances, we are of the considered opinion that the prosecution miserably failed to establish the charge against the appellant for the offence punishable under Section 376 IPC. 15. For all the aforesaid reasons, we hold that the prosecution failed to establish the charges framed against the appellant for the offences punishable under Sections 376 and 392 IPC. The conviction as well as sentences imposed upon the appellant for the offences punishable under Sections 376 and 392 IPC are accordingly set aside.” 18. Another fact which makes the prosecution story doubtful is that the incident was said to have taken place on 10.10.1998 and the FIR was lodged by the prosecutrix on 31.10.1988 at 4.30 PM. This delay in lodging the FIR remains unexplained by the prosecution, which is fatal to the case of prosecution. 12 19. My view is fortified by the observations made by the Hon’ble Apex Court in the case of State of Karnataka v. Mapilla P.P. Soopi reported in (2003) 8 SCC 202, which is reproduced as under: “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.” 20. From the above-narrated facts and circumstances of the case and the evidence available on the record and in view of the legal proposition propounded by the Hon’ble Apex Court (supra), the prosecution has miserably failed to prove its case against the appellants/accused beyond reasonable doubt and the appellants-accused are entitled to get the benefit of doubt. As such, the impugned judgment and order dated 12.11.1992 of the trial court is not correct and justified and is liable to be set aside. 21. In the result, the appeal is allowed. The judgment and order dated 12.11.1992 passed by the Assistant Sessions Judge, Pauri Garhwal in Sessions Trial No. 18 of 1989, State v. Suresh & Others convicting the appellant/accused Suresh under Section 376 I.P.C., appellant/co-accused Smt. Bhama Devi under Section 366 I.P.C. and appellants/co-accused Belamdas and Gayaloo under Section 366/34 I.P.C. is hereby set aside and the sentence of 10 years’ R.I. along with fine of Rs. 2000/- awarded to Suresh and sentence of three years’ R.I. along with fine of Rs. 1000/- awarded each to Smt. Bhama Devi, Belamdas and Gayaloo, are quashed. Appellants are hereby acquitted of the charges levelled against them. The appellants are on bail. They 13 need not surrender unless required in any other case. Their bail bonds are cancelled. Sureties are discharged. 22. Let the lower court record be sent back. (Dharam Veer, J.) 15.4.2009 PRABODH