RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 393 of 2001 (Old No. 1817/1997) Bachan Singh .…. Appellant/Accused Versus State of U.P. …………… Respondent September 14 , 2010 Mr. SK Agarwal, Sr. Advocate assisted by Mr. Loken ra Dobhal, Advocate for the appellant. d Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 3.10.1997 passed by the Ist Additional Sessions Judge, Dehradun in Sessions Trial No. 243/1995, State v. Bachan Singh & Anr., whereby the learned Ist Additional Sessions Judge has convicted the appellant/accused Bachan Singh under Sections 376 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo seven years’ R.I. along with fine of Rs. 5,000/-, in default to undergo further six months R.I. However, the accused appellant was acquitted of the charges punishable under Section 342 & 496 IPC. Co- accused Smt. Sureshi was also acquitted by the trial court for the charges levelled against her under Sections 342 and 496 read with Section 114 IPC. 2. In brief, the prosecution case is that on 18.3.1995 at 4.05 pm, PW1 Km. Arun Prabha lodged an FIR with the averments that on 29.12.1994, she along with her cousin brother Ram Prakash came from Delhi to Dehradun on the occasion of the birthday of the daughter of the accused appellant Bachan Singh on his invitation. Bachan Singh is the son of her Bua (father’s sister). The juice was 2 brought on her request. On drinking the said juice she became unconscious. On regaining her consciousness, she found that the rape has already been committed on her. On objection being raised by her, accused appellant Bachan Singh and his wife Smt. Sureshi, (co-accused, acquitted by the trial court) filled up her Maang and provided Mangal Sutra to her. They told her that she is the second wife of Bachan Singh from today and he will marry with her quietly in the Court or Temple. Since then, they have detained her illegally. They also subjected her to mental and physical torture from time to time. They also assaulted her today. Saving herself, she came to the police station for lodging the report. On the basis of this report Ex. Ka-1, a case was registered against the appellant accused and the co-accused (acquitted by the trial court) and chick FIR Ex. Ka-5 was prepared by Head Moharrir Narendra Singh Bisht, who also made the necessary entries in the GD. Copy of GD is Ex. Ka-7. Investigation of this case was entrusted to SI KL Bhardwaj (PW5). The victim was medically examined on 18.3.1995 at 5 pm by Dr. Renu Negi (PW3), who also prepared the medical report Ex. Ka-3. On her advice, the x-ray of wrist, elbow, knee and ankle of the victim was done under the supervision of Dr. BC Ramola (PW2), Radiologist, who prepared her x-ray report Ex. Ka-2. The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan Ex. Ka-6. He recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-4 against the accused appellant and the co-accused (acquitted by the trial court). 3. Learned III ACJM, Dehradun, after giving the necessary copies of the documents to the appellant- accused and the co-accused as prescribed under Section 3 207 Cr.P.C., committed the case to the Court of Sessions on 23.9.1995. Learned Sessions Judge, Dehradun transferred the case to Ist Additional Sessions Judge, Dehradun for its disposal according to law. 4. On 8.1.1996, learned Ist Additional Sessions Judge, Dehradun framed the charges against the appellant/accused Bachan Singh under Sections 342, 496 and 376 IPC and against the co-accused Smt. Sureshi under Sections 342, 114 and 496 IPC. The charges were read over and explained to the appellant-accused and the co-accused (acquitted by the trial court), who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Km. Arun Prabha, the victim and the complainant; PW2 Dr. BC Ramola, Radiologist; PW3 Dr. Renu Negi, who medically examined the victim; PW4 Smt. Krishna, real sister of the victim and PW5 SI KL Bhardwaj, the I.O. of the case. 6. Thereafter, the statements of the appellant/accused and co-accused (acquitted by the trial court) 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. In defence, Mazhar Mohammad was examined as DW1, who has proved the affidavit of the victim dated 2.3.1995 as Ex. Kha-1. 7. After hearing learned counsel for the parties and after appreciating the evidence on record, the learned Ist Additional Sessions Judge, Dehradun vide his judgment and order dated 3.10.1997 convicted and sentenced to the appellant/accused as discussed above. Co-accused Smt. 4 Sureshi was acquitted of the charges levelled against her. Against the aforesaid judgment and order dated 3.10.1997, the appellant/accused has preferred the present appeal. 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. Before any further discussion, it would be pertinent to reproduce the medical report Ex. Ka-3 prepared by PW3 Dr. Renu Negi, who had examined the victim Km. Arun Prabha on 18.3.1995 at 5 pm and the same is reproduced as under: “MI : A small flat mole 1 cm above and away left side of upper lip). Teeth 7+7/8+8. Height 5’ 2½” Wt. 40 Kg. General Examination : An old contusion mark below Rt knee and 2 cm in length. No other visible mark of injury on her body or private part. Axillary and pubic hairs well developed. Local Examination : No mark of injury seen on her private part. Hymen old torn. No fresh mark of injury. Vagina admits 2 finger easily. Ut. NS (i.e. uterus normal size). Fx (fornix) clear. Vaginal smear taken & sent for histopathological test. Opinion : No definite opinion about rape can be given. Final opinion shall be given after x-ray report and pathology report. Adv. : X-ray wrist, ankle, knee and elbow joint.” 10. X-ray of the wrist, elbow, knee and ankle of the victim was done by the Technician under the supervision of PW2 Dr. BC Ramola, who prepared the x-ray report Ex. Ka-2, wherein it has been stated that all the epiphysis of 5 elbow, wrist, knee and ankle were found fused with their respective shafts. 11. To prove the abovementioned medical report Ex. Ka- 3, the prosecution has examined PW3 Dr. Renu Negi, who has proved the same. She has further stated that no visible mark of injury was found on her body except an old contusion of 2 cm below the right knee. She has also stated that no injury on the private parts of the victim was found and no definite opinion about the rape can be given. 12. To prove the x-ray report Ex. Ka-2, the prosecution has examined PW2 Dr. BC Ramola, Radiologist, who has proved the same and has stated that the x-ray was done by the Technician under his supervision. He has also proved the x-ray plate as Ex. 1. He has stated in his cross- examination that the age of the victim was more than 18 years and it might be about 21 years also. 13. To further prove its case, the prosecution has examined PW1 Km. Arun Prabha, the victim and the complainant of the case, who in her statement recorded on 6.5.1996 has stated her age to be 27 years. She has further stated that the accused appellant Bachan Singh is her Bua’s son and the co-accused Smt. Sureshi (acquitted by the trial court) is the wife of appellant. They resided in Sayyed Mohalla, Dehradun. Accused appellant had invited her on the occasion of the birthday of his daughter Mamta, which was on 29.12.1994. On that day, she herself along with her cousin brother Ram Prakash (mother’s sister’s son) came from Delhi to Dehradun to attend the birthday party of Mamta. Birthday was celebrated in the night on that day. On the next day, Ram Prakash returned to Delhi and she stayed there at Dehradun at the request of the accused appellant. On the 6 next day, after taking dinner, she asked for the juice and after drinking it, she became unconscious. When she regained consciousness, she found that she was undressed and Bachan Singh was committing rape on her. His wife was also present there. She raised objections and that she will complain to her aunt (Bua) about the incident. She tried to raise the alarm, but the accused appellant closed her mouth. Thereafter, they filled up her Maang and provided her Mangal Sutra. The accused appellant told her that he will keep her as his wife. Co- accused (wife of appellant) also told her not to disclose anything to anybody and she will keep her. They detained her at their house and kept her in deception for several days. When she was staying there, the accused appellant and his wife used to create an atmosphere of struggle with each other and brother of Bachan Singh and his family members also used to beat her. She was very much disturbed in those days. She had written the report Ex. Ka-1 and signed it. After the said incident, accused appellant many times committed rape on her. She was medically examined by the lady doctor at the instance of police. Her x-ray was also done. Thereafter, the police got her statement recorded in the court of Magistrate. In her cross-examination, she has stated that her sister (PW4 Smt. Krishna) was residing in Dehradun at the time of incident and she had accompanied her when she came to lodge the report. In between 29.12.1994 to 18.3.1995, she never met her sister. She pleaded ignorance as to whether her sister was aware that she was living in the house of the accused appellant. She has further stated that she had written the report Ex. Ka-1 and had stated therein that rape was committed on her on 30.12.1994 although after seeing the said report she admitted that no averment to this effect has been made in the report. She pleaded ignorance as 7 to from whom she had asked to bring the juice. But subsequently she improved her version by saying that she had got it from Bachan Singh, though she admitted that no averment to this effect was made in the report. She admitted that she was unconscious when the rape was committed on her. She has further stated that when she had asked for the juice, at that time accused appellant, his wife (co-accused acquitted by the trial court), their four children and mother of accused appellant were also present. She pleaded ignorance about the time when she regained consciousness in the night of alleged date of incident. She further stated that when she regained consciousness, at that time accused appellant, his wife and children were present in the room. Subsequently she improved her version and said that when she regained her consciousness, accused appellant was committing rape on her and his wife was watching the happenings. She has admitted that she used to go to attend the computer class in Graphigra, Dehradun from 5 pm to 7 pm from January, 1995. She also stated that she stayed there till March, 1995 on the request of the accused appellant. She has admitted her photograph on the affidavit dated 2.3.1995 (Ex. Kha- 1). 14. PW4 Smt. Krishna has stated that the victim Km. Arun Prabha is her younger sister, who resides at Delhi with her parents. She has further stated that her husband is in the Army who was posted at Dehradun but at the time of incident he was in Rajasthan. Her sister Km. Arun Prabha came to her house on 18.3.1995. She had come to Dehradun on 29.12.1994 on the occasion of birthday of the daughter of the accused appellant on his invitation. Subsequently, this witness stated that the birthday was 8 on 30.12.1994. She has further stated that after the departure of the guests on that day, the accused appellant requested her sister to stay there. She also informed her that accused appellant had brought juice for her on that night and after taking the juice, she became unconscious. At about midnight, when she regained consciousness then she found that rape was committed on her. When her sister told that she will inform about this incident to her aunt, then Bachan Singh and his wife requested her not to do so. The wife of the accused appellant took out her Mangal Sutra and put it on the neck of the victim and told her that she should live as the wife of the accused appellant. Thereafter accused appellant filled up Sindoor on her Maang. This witness has further stated that the aforesaid story about the incident was told to her by Km. Arun Prabha, her sister. Thereafter the report of the incident was written by the victim at the house of this witness and thereafter she along with her sister went to police station to lodge the report. In her cross- examination, this witness has stated that she was not invited in the said birthday party. She never met her sister even once between 30.12.1994 to 18.3.1995 and she was not aware that her sister (victim) was residing at the house of the accused appellant during the aforesaid period. 15. PW5 KL Bharadwaj has stated that on 18.3.1995, he was posted as S.I. at reporting police chowki, Bichand, PS Cantt. Investigation of this case was entrusted to him. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-6. He recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka- 4 against the accused appellant and the co-accused (acquitted by the trial court). This witness has also proved chick FIR Ex. Ka-5 and copy of GD Ex. Ka-7 and has 9 stated that the same were prepared by Head Moharrir Narendra Singh Bisht and he is well-acquainted with his handwriting. 16. Thereafter, the statements of the appellant/accused and co-accused (acquitted by the trial court) 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. In defence, Mazhar Mohammad was examined as DW1, who has proved the affidavit of the victim dated 2.3.1995 as Ex. Kha-1. 17. DW1 Mazhar Mohammad has stated that he has been practicing as an Advocate at Dehradun since 1936. In 1985, he was appointed as Public Notary. On 2.3.1995, Km. Arun Prabha came to him and had brought an affidavit. He had verified that affidavit. Her photo was also affixed on the said affidavit. He had also verified her from her photo affixed on the affidavit and thereafter he verified the contents of the affidavit. He had obtained her signatures on the affidavit. The said affidavit is Ex. Kha-1 which bears his endorsement and signature. In his cross- examination, he has stated that the yearly register of the affidavits is maintained. He obtains the signature of the deponent on the affidavit and in the register of affidavits. The signatures of Km. Arun Prabha were identified by Sri CL Narula, Advocate. Km. Arun Prabha had come to him along with Sri CL Narula, Advocate and he had identified her. This witness was cross-examined at length, but nothing material has been elicited in his cross- examination on the basis of which his testimony may be discarded. 10 18. Learned Counsel for the accused appellant argued that on the basis of the evidence adduced by the prosecution, the case against the accused appellant is not proved beyond reasonable doubt and the trial court has erred in convicting and sentencing the appellant. I find substance in argument of learned Counsel for the accused appellant for the following reasons: (i) That the victim Km. Arun Prabha has stated in her deposition that rape was committed on her on 30.12.1994, but in her cross-examination she has admitted that no averment regarding exact date has been made in the report. She admitted that she was unconscious when the rape was committed on her and further pleaded ignorance about the time when she regained consciousness in the night of alleged date of incident. It is also undisputed that she herself asked for the juice and it was not served by the appellant on his own. (ii) That the victim Km. Arun Prabha has stated that she stayed in the house of the accused appellant from 29.12.1994 till 18.3.1995 at the request of the appellant. It is also undisputed that her sister was also living in Dehradun and the victim was attending the computer classes between 5 pm to 7 pm from January, 1995. But she never met her sister. If the alleged rape was committed on her on 29.12.1994 and she was going outside to attend the computer classes, she would have met her sister or she could also had approached the police. But neither she met her sister, nor telephoned anybody nay made any complaint to the police. Contrarily, she continued to stay at the house of the appellant 11 on his request until 18.3.1995, when the report was lodged. This conduct of the victim creates serious doubt about the prosecution story. (iii) That PW4 Smt. Krishna is the real sister of the victim and she was also residing in Dehradun at the time of alleged incident, but she was not invited by the appellant in the birthday party of his daughter, whereas the victim who was living at Delhi was invited. The victim also came to Dehradun from Delhi to attend the said party and stayed there till 18.3.1995 i.e. for more than two and half months. But her sister was not aware of it. Nor did her parents make any search for the victim, who was residing at Delhi along with her parents. It belies the statement of the victim that he was forcibly detained in the house of the accused appellant inasmuch as had the case been so, then a search could have been made for her by her parents and relatives and furthermore, she was also going outside regularly to attend her computer classes. All these facts and circumstances of the case create serious doubt about the whole prosecution story. (iv) That the victim has stated that the rape was committed by the accused appellant in the presence of his wife Smt. Sureshi (co-accused acquitted by the trial court). She has also stated that she was unconscious when the rape was committed on her. She has also stated that when she regained her consciousness, the appellant, his wife and their children were present in the room. The story seems improbable as it could not be normally believed that a person shall commit rape in the presence 12 of his wife and children, which creates serious doubt about the prosecution story. (v) That the victim Km. Arun Prabha in her deposition recorded on 6.5.1996 has stated her age to be 27 years. Also in her statement under Section 164 CrPC as well as in her affidavit Ex. Kha-1 dated 2.3.1995, she has stated her age as about 27 years. In the medical report her age has been shown to be between more than 18 years and it may be 21 years also at the time of incident. Thus, undisputedly and by all measures, she was major at the time of incident. (vi) That in her affidavit Ex. Kha-1 dated 2.3.1995, she has stated that she was living along with the appellant as brother and sister. (vii) That the statement of PW4 Smt. Krishna, sister of the victim is based on heresy as she herself has stated in her deposition that the victim had narrated about the incident to her, which she deposed before the court and she herself had not seen the incident. (viii) That in the medical report Ex. Ka-3 prepared by PW3 Dr. Renu Negi who had medically examined the victim, it has been stated that no definite opinion about the rape can be given. No mark of injury on the private part of the victim was seen. Thus, the medical report also does not corroborate the ocular version of the prosecution. (ix) That the incident allegedly took place in the night of 30.12.1994 and the report of this incident was be lodged on 18.3.1995 and this delay in lodging the FIR could not be explained by the prosecution by showing the sufficient 13 cause. Therefore, this delay in lodging the FIR is also fatal to the case of prosecution. (x) That it is a case of solitary evidence but the statement of the victim, the sole witness, is not believable, reliable, natural and it does not inspire the confidence. (xi) That on the basis of same set of evidence, co- accused Smt. Sureshi was acquitted by the trial court. 19. For the reasons recorded above, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt and, therefore, the conviction and sentence awarded to the appellant by the trial court is not correct and justified and the same is liable to be set aside. 20. In the result, the appeal is allowed. The judgment and order dated 3.10.1997 passed by the Ist Additional Sessions Judge, Dehradun in Sessions Trial No. 243 of 1995, State v. Bachan Singh & Anr., is hereby set aside. Consequently, the conviction of the appellant Bachan Singh under Section 376 IPC and sentence awarded to him to undergo R.I. for seven years along with a fine of Rs. 5000/- is hereby quashed. Appellant is on bail. He need not surrender unless required in any other case. 21. Let a copy of this judgment be sent to the trial court. Let the lower court record be also sent back. (Dharam Veer, J.) 14.9.2010 PRABODH