IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.764 OF 2001 (Old No.2146/1997) 1. Patu 2. Teerath Pal ……… Appellants Versus The State ……… Respondent Dated: February 25, 2010 Sri Rajendra Singh, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 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 25.11.1997 passed by the I Addl. Sessions Judge, Haridwar in Sessions Trial No.139 of 1995, State Vs. Patu & Teerath Pal, whereby the learned I Addl. Sessions Judge has convicted the appellants/accused u/s 376(2)(g) of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to ten years’ rigorous imprisonment with fine of Rs.2,000/- each and in default, one years’ additional R.I each was awarded. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Telu Ram (P.W.2) lodged an FIR stating 2 therein that on 11.3.1994 at about 8 AM, his daughter Km. Babli, aged about 10 years, had gone in the field to cut the fodder (BARSIN), where the appellants-accused Teerath and Patu met her. Both the appellants-accused lifted the complainant’s daughter into the sugarcane field where both of them committed bad work with her. On the noise raised by the victim, Sheeshpal and Dharampal came there, on seeing whom; the appellants-accused ran away from there. This entire incident was narrated to the complainant by his daughter at his home. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.2 Telu Ram on 14.3.1994 at 11:10 AM at P.S. Manglore, Distt. Haridwar. On the basis of the FIR (Ex.Ka.1), Head Moharrir Kailash Tyagi prepared the Chik FIR of the case, i.e. Ex.Ka-2. Entry was also made by him in the G.D., carbon copy of which is Ex.Ka-3. The investigation of this case was entrusted to P.W.3 S.I. Bhagwan Singh Yadav. Victim Km. Babli was medically been examined on 14.3.1994 at 1:30 PM by P.W.4 Dr. Mrs. K.K. Mehta, who prepared the medical report Ex.Ka-7. Supplementary report was also been prepared of the victim by the same medical officer, i.e. Ex.Ka-8. The I.O. took in his possession the bloodstained Salwar of the victim worn by her at the time of incident and prepared Fard Ex.Ka-5. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-4. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/accused in the court, i.e. Ex.Ka-6. It is pertinent to mention here that the I.O. also sent the 3 recovered bloodstained Salwar of the victim for the chemical examination and report given by Scientific Officer, Agra is Ex.Ka-9 in which it is stated that on the Salwar of the victim, spermatozoa, human blood, human sperms and blood clots of Group ‘A’ were found. 4. After receiving the charge sheet, learned J.M., Roorkee committed the case to the court of Sessions on 15.05.1995 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. The case was transferred to I Addl. Sessions Judge, Haridwar for disposal according to law. 5. On 12.12.1995, learned I Addl. Sessions Judge, Haridwar has framed the charge against the appellants/accused Patu and Teerath u/s 376 IPC. The charge was read over and explained to appellants/ accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Km. Babli, victim, P.W.2 Telu Ram, father of victim and complainant, P.W.3 S.I. Bhagwan Yadav, I.O. of the case and P.W.4 Dr. K.K. Mehta, who medically examined the victim. 7. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against him and stated that they have been falsely implicated. Appellant-accused Patu has stated that due to some dispute of land, he has been falsely implicated. Appellant- accused Teerath has stated that since he was the brother 4 in law of Patu, he has been falsely implicated. In oral evidence they got examined Sheeshpal as D.W.1. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned I Addl. Sessions Judge, Haridwar vide judgment and order dated 25.11.1997 convicted and sentenced the appellants/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before any further discussion, it is pertinent to mention the medical report Ex.Ka-7 of the victim Km. Babli who was medically been examined on 14.3.1994 at 1:30 PM by P.W.4 Dr. Mrs. K.K. Mehta, which is as under: - “No mark of external injury on any part of body. Fully coherent, thin built girl. Breast not developed, auxiliary hairs not grown, pubic hairs not grown” Local examination-Hymen torned posteriorly at 6 o’clock position. No fresh bleeding found. Perineal tear about 1 cm in length towards and orifice. Tear started bleeding. On examination vagina admitted one finger with pain. Edges of tear enflamed. Slide prepared (vaginal smear) and handed over to S/M Guddi. Adv. 1. Plain x-ray elbow and wrist joints (both) for confirmation of age. 2. Vaginal smear examination for presence of spermatozoa. 10. Thereafter, the supplementary report (Ex.Ka-8) of victim was also prepared by the same medical officer, which is as under: - “X-ray report- 5 X-ray right elbow and writs joints- Elbow, head radius, capitulum, mid-epicondyle, lateral epincondyle not fused. Wrist joint-lower end of radius and ulna not fused. Only seven carpal bones present. Radiological age- Between 9-12 (nine to twelve) years as per radiologist. Pathology Report- Provided vaginal smear shows “no spermatozoa dead or alive” Conclusion-1. Radiological age of Km. Babli appears to be between 9-12 years. 2. Perineal injury appears to be caused by blunt object and one to two days old (1-2 days).” 11. To prove the above-said reports, the prosecution has examined P.W.4 Dr. Smt. K.K. Mehta, who has proved the medical report Ex.Ka-7 and supplementary report Ex.Ka-8 prepared by her. 12. To further prove its case, the prosecution has examined P.W.1 Km. Babli who recognized the appellants-accused Teerath and Patu in the court. She further stated that her father is a labourer and the appellants-accused were also the labourers. She further stated that on the date of incident at about 8 AM, she had gone in the field of Pehal Singh to get the fodder. As soon as she was passing out the field, the appellants- accused Teerah and Patu caught hold of her and took her in the sugarcane field. Thereafter, both the appellants- accused made her naked. Firstly, the appellant-accused Teerath committed rape with her and the appellant- accused Patu was holding her. Subsequently, while committing the rape by the appellant-accused Patu, appellant-accused Teerath was holding her. Blood oozed 6 out from her private part. Sheeshpal and Dharam Pal reached there, on seeing them, the appellants-accused ran away from there. After that she was brought at her house. At her house, she informed about the incident to her father. She further stated that when she was making noise, the appellant-accused Patu threatened her to her life by cutting her neck in case she would informed about the incident at her home. She further stated that when Sheeshpal and Dharam Pal brought her home, she was suffering pain in her vagina. On the date of incident, two marriages were being solemnized in the village. The persons, in whose house the marriages were being solemnized, had asked her father to lodge the report after departure of guests. After three days, her father took her at police station. She further stated that she had given her Salwar worn by her at the time of incident to the I.O., which is Ex.1. She was also medically been examined by the lady doctor. Her statement was also recorded before the Magistrate on the next date. Her father was being pressurized for the compromise with the accused. This witness was cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is reliable and believable and inspires confidence. 13. P.W.2 Telu Ram has also fully supported the statement of the victim Km. Babli (PW1). He has also proved the report Ex.Ka-1 lodged by him which he got scribed from Pradeep. 7 14. P.W.3 S.I. Bhagwan Yadav who stated that the investigation of this case was entrusted to him. Chik FIR of this case was prepared by H.M. Kailash Tyagi, which is Ex.Ka-2. Entry was also made by him in the G.D., carbon copy whereof is Ex.Ka-3. He also inspected the place of occurrence during the investigation. He also took the bloodstained Salwar of the victim worn by her at the time of incident and prepared Fard, i.e. Ex.Ka-5. During investigation, he recorded the statements of witnesses and on completing the investigation, filed the charge sheet, i.e. Ex.Ka-6. 15. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against him and stated that they have been falsely implicated. Appellant-accused Patu has stated that due to some dispute of land, he has been falsely implicated. Appellant- accused Teerath has stated that since he was the brother in law of Patu, he has been falsely implicated. 16. In oral evidence the appellants-accused have got examined Sheeshpal as D.W.1, who has stated that he had not seen any incident of the rape committed by the appellants-accused with the victim Km. Babli. He also stated that Fakkar had no issue and he had given his land to the appellant-accused Patu and the complainant Telu wanted to grab that land of Fakkar and for this reason, Telu had enmity with the appellant-accused Patu. 17. Sri Rajendra Singh, learned counsel for the appellants-accused argued that the prosecution has not 8 proved its case against the appellants-accused beyond reasonable doubt. I do not find any force in this argument for the reason that P.W.1 Km. Babli, who is the victim, has recognized the appellants-accused Teerath and Patu in the court. She has categorically deposed that on the date of incident i.e. on 11.3.1994 at about 8 AM, she had gone in the field of Pehal Singh to get the fodder. As soon as she was passing out through the field, the appellants-accused Teerath and Patu caught hold of her and took her in the sugarcane field where, both the appellants-accused made her naked. Firstly, the appellant-accused Teerath committed rape with her and the appellant-accused Patu was holding her. Subsequently, the rape was committed by the appellant-accused Patu and at that time, the appellant-accused Teerath was holding her. She has further deposed that blood also oozed out from her private part. Sheeshpal and Dharam Pal reached there, on seeing them, the appellants-accused ran away from there. After that she was brought at her house. At her house, she informed about the incident to her father. She further stated that when she was making noise, the appellant-accused Patu threatened her to her kill her by cutting her neck in case she would inform about the incident at her home. She further stated that when Sheeshpal and Dharam Pal brought her home, she was suffering pain in her vagina. On the date of incident, two marriages were being solemnized in the village. The persons, in whose house the marriages were being solemnized, had asked her father to lodge the report after departure of guests. After three days, father of 9 victim brought her at police station and thereafter the case was lodged. She further stated that she had given her Salwar worn by her at the time of incident to the I.O., which is Ex.1. She was also medically been examined by the lady doctor. Her statement was also recorded before the Magistrate on the next date. She further testified that her father was also been pressurized for the compromise with the accused. The statement of this witness is reliable and believable and inspires implicit confidence and the same also gets corroborated by the oral testimony of P.W.2 Telu Ram. The evidence of prosecutrix also gets supported by the medical evidence. The prosecution has also examined medical officer P.W.4 Dr. Smt. K.K. Mehta, who has medically examined the victim and who proved the medical report Ex.Ka-7 and supplementary report Ex.Ka-8 prepared by her. In the medical report Ex.Ka-7 prepared by her, the medical officer has stated that Breasts of the victim were not developed, auxiliary hairs not grown and even pubic hairs not grown. In the local examination, it was found that the hymen is torned posteriorly at 6 o’clock position. No fresh bleeding found. Perineal tear about 1 cm in length towards and orifice. Tear started bleeding. On examination vaginal admitted one finger with pain. Edges of tear enflamed. After receipt of the x-ray report and pathology report, the medical officer came to the conclusion that (1) the radiological age of Km. Babli appears to be between 9-12 years and (2) Perineal injury appears to be caused by blunt object and one to two days old (1-2 days). Even in the Salwar of the victim sent for chemical examination, the Scientific 10 Officer, Chemical Laboratory, Agra in his report (Ex.Ka-9) has stated that in the Salwar of the victim, spermatozoa, human blood, human sperms and blood clots of Group ‘A’ were found. Thus in this way, the medical evidence also fully corroborates the prosecution version. Therefore, in this way, the offence punishable u/s 376 (2)(g) of IPC is fully made out against the appellants-accused and the trial court has rightly convicted and sentenced the appellants-accused as discussed above. 18. No other point was pressed. 19. For the reasons as recorded above, the appeal is devoid of merits and is dismissed accordingly. The judgment and order dated 25.11.1997 passed by the I Addl. Sessions Judge, Haridwar in S.T. No.139 of 1995, State Vs. Patu & Teerath Pal is hereby affirmed. The appellants-accused are on bail. Let them be taken into custody forthwith to serve out the sentence. However, the period already been served out by the appellants- accused during the period of investigation, trial or appeal shall be set off after verifying the record. 20. The record of the case let be sent back to the trial court concerned for compliance forthwith. (Dharam Veer, J.) February 25, 2010 Rajeev Dang