RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL No.1471 of 2001 (Old No.1162 of 1991) The State …….….…. Appellant Versus Nanda Singh S/o Tulsi Singh, R/o Village Sinkhal Karanprayag …………… Respondents Dated: November 12, 2008 Sri M.A. Khan, Brief Holder for the State/appellant Sri Pankaj Purohit, Advocate for the respondent HON. DHARAM VEER, J. This appeal, preferred by the State/appellant u/s 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 08.02.1991 passed by Sessions Judge, Chamoli in S.T. No.01 of 1990, State Vs. Nanda Singh, whereby the learned Sessions Judge has acquitted the respondent/accused Nanda Singh for the offence punishable under Section 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). 2. I have heard Sri M.A. Khan, learned Brief Holder for the State/appellant and Sri Pankaj Purohit, Advocate for the respondent and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.2 Km. Shakuntala lodged a FIR on 1.11.1989 stating therein that her father was a Peon in the Sanskrit Mahavidyalaya, Sangam, Rudraprayag and she was residing along with her father in the house provided by 2 the school. She further stated that her father had gone to village and she was residing in the house of respondent- Nanda Singh on 31.10.1989 along with her sister Rekha (P.W.3). She also stated that respondent-accused Nanda Singh was known to her for about 1-1½ year. She further stated that in the night of 31.10.1989, respondent- accused Nanda Singh, by enticing, committed rape with her due to which blood oozed out from her private part. After seeing her condition, respondent-accused Nanda Singh brought her to the hospital. This FIR is scribed by Kushlanand and verified by Medical Officer, Govt. Hospital, Rudraprayag, Pauri (Garhwal), i.e. Ex.Ka-4. On the basis of this FIR, the Chik FIR was prepared in the Rudraprayag Police Station on 1.11.1989 at 11:45 A.M. by Head Moharrir Anoop Singh, i.e. Ex.Ka-8. The victim Km. Shakuntala was medically examined by P.W.1 Dr. Avinash Saxena on 4.11.1989 and the medical report Ex.Ka-1 was also prepared by her. The supplementary report of victim is Ex.Ka.2 and X-ray report is Ex.Ka-3. Primarily the investigation of this case was conducted by S.I. Nar Pal Singh of Rudraprayag Police Station. Later on the investigation was transferred to Ukhimath Police Station as the case was related to the area of Ukhimath Police Station. Then the investigation was carried out by S.O. B.S. Yadav, P.W.6. During the course of investigation, the I.O. took in his possession the bloodstained Salwar and Kurta of the victim in his possession and prepared a Fard, i.e. Ex.Ka-5. The I.O. also took in his possession the bloodstained bed sheet from the room of house of respondent-accused Nanda Singh and prepared a Fard, i.e. Ex.Ka-6. The I.O. also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-12. The underwear of the respondent- accused Nanda Singh was also taken by the I.O. in his possession and a Fard was prepared, i.e. Ex.Ka-9. The 3 date of birth certificate of the victim Km. Shakuntala issued by Govt. Girls Inter College, Rudraprayag is Ex.Ka-15. The statement of the victim Km. Shakuntala (P.W.2) recorded u/s 164 Cr.P.C. before P.W.5 Lallu Singh, SDM, Ukhimath, Chamoli is Ex.Ka-7. The items which were recovered by the I.O. viz. Salwar and Kurta, bedsheet, Maxi, underwear, cotton, trouser (Payjama), piece of cloth and underwear were sent to the chemical laboratory and the Scientific Officer, Agra submitted his report i.e. Ex.Ka-17. About the aforesaid items sent to the chemical laboratory, no spermatozoa was found. The I.O. during the course of investigation recorded the statements of witnesses and after completing the investigation, has submitted the charge sheet against the respondent-accused Nanda Singh u/s 376 IPC, i.e. Ex.Ka-16. 4. It appears that learned Chief Judicial Magistrate, Chamoli has committed the case to the court of Sessions on 09.02.1990 after giving necessary copies to the accused as required under Section 207 Cr.P.C. 5. On 15.02.1990, learned Sessions Judge, Chamoli framed the charge against the respondent/ accused Nanda Singh for the offence punishable under Section 376 IPC. The charge was read over and explained to him, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Dr. Avinash Saxena, who has medically examined the victim; P.W.2 Km. Shakuntala, victim and complainant of the case; P.W.3 Km. Rekha, sister of victim; P.W.4 Bhanu Prakash Devli, before whom the bloodstained Salwar and Kurta of victim as well as bed sheet of the respondent-accused was taken into possession, P.W.5 Lallu Singh, SDM before whom the 4 statement of victim u/s 164 Cr.P.C. was recorded and P.W.6 S.O. B.S. Yadav, I.O. of the case, who has investigated the crime. 7. Thereafter, the statement of the respondent/ accused was recorded u/s 313 of 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. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Chamoli vide his judgment and order dated 08.02.1991 has acquitted the respondent-Nanda Singh for the offence punishable u/s 376 IPC. Feeling aggrieved by the aforesaid judgment and order, the State has come up in appeal. 9. Before further discussion, it is pertinent to mention that victim Km. Shakuntala was medically examined on 04.11.1989 at 11:45 A.M. by P.W.1 Dr. Avinash Saxena and her medical report was also prepared i.e. Ex.Ka-1. The medical officer on the person of victim found as under: - Pubic hairs not present. No marks of injury present over lower abdomen medial aspect of thighs and labia. Packing present in vaginal smear. Hymen torn and there is tear at 6 o’clock position, margins are swollen and red. There is also post perineal tear at 6 o’clock position size 2 cm x 0.5 cmx x muscle deep, oozing present, margins are red and swollen. Bleeds on touch, granulation tissue present. Vaginal orifice admits two fingers easily, uterus undersized, vaginal smear taken and sent to Pathology 5 Deptt. Distt. Hospital, Pauri for examination for spermatozoa and gonococci. Advised x-ray elbow wrist, knee and ankle for assessment of age. The clothes worn at the time of examination i.e. Maxi and underwear duly sealed and handed over to accompanying police constable. The medical officer P.W.1 Dr. Avinash Saxena also prepared the supplementary report (Ex.Ka-2) in respect of victim and on the basis of vaginal smear report, she came to the following conclusion: - Conclusion- 1. Injures over genitals present and vaginal smears are negative for spermatozoa and gonococci. Hence no definite opinion regarding rape can be given. The injuries over genitals may be caused by blunt projectile organ. 2. The age of the girl can not be assessed due to non- availability of x-ray report. The Radiologist, Distt. Hospital, Pauri also prepared the X-ray report (Ex.Ka-3) in respect of victim which is also reproduced as under: - 1. X-ray elbow joint- Epiphysis of medial lateral epicondyle are not fused with their respective shafts. Epiphysis of head of radius and olecranon process are not yet fused with radius and ulna respectively. 2. X-ray wrist joint- Epiphysis of distal end of radius and ulna are not fused with their shafts. Pisiform bone is not visible. 6 3. X-ray knee joint- Epiphysis of lower end of femur, upper end of tibia and tibula are not fused with their shafts. 4. X-ray ankle joint- Epiphysis of carcaneum bone is not fused with its body. Epiphysis of distal end of tibia and tibula are not fused with their respective shafts. Opinion- On radiological grounds, the age of the girl is between 11-13 (eleven to thirteen) years. 10. To prove the aforesaid medical reports, the prosecution has examined P.W.1 Dr. Avinash Saxena who has stated that on 4.11.1989, she was posted as Medical Officer in Distt. Hospital, Pauri. On that day at 11:45 A.M., she had medically examined the victim Km. Shakuntala. She also proved the medical report Ex.Ka-1, supplementary medical report Ex.Ka-2 and X-ray report, i.e. Ex.Ka-3. 11. To further prove its case, the prosecution has examined P.W.2 Km. Shakuntala, victim of the case, who has stated her age as 13 years at the time of recording of her statement before the court. She has stated that respondent-accused Nanda Singh was known to her who was the employee in the post-office. The respondent- accused Nanda Singh was living near her room at Sangam Rudraprayag. He was known to her before one and half year of the said incident and she was living there along with her father and sister. She has further stated that on 31.10.1989 her father had gone to his village for cultivating the land and she was in her room along with her sister. On that day at about 7-8 P.M., she along with her sister had taken the dinner. After that respondent-accused Nanda Singh had come to their room and asked both of them to come in his room for sleeping. 7 Thereafter she along with her sister went to the room of respondent-accused Nanda Singh for sleeping where two cots were kept there. Up to 12 o’clock in the night they were talking with each other and thereafter they slept. Both of the sisters were sleeping in one cot and respondent-accused Nanda Singh was sleeping in another cot. In the night, her sister Rekha was shifted by respondent-accused Nanda Singh in his cot and then respondent-accused came in her cot. Thereafter, the respondent-accused Nanda Singh committed rape with her. Her sister Rekha also wake up after hearing the noise and she tried to open the door bolt, however she could not succeed in doing so. Due to the rape committed by respondent-accused Nanda Singh with her, blood oozed out due to which her clothes became bloodstained. On the next day morning, she went to the hospital along with respondent-accused Nanda Singh. The nurse enquired her about the incident, however she said nothing about the incident. Later on the doctor had come and enquired about the incident, then she narrated the entire incident to the doctor. Thereafter the doctor had called the police and the report was scribed on which she also signed, i.e. Ex.Ka-4. The doctor applied medicine and cotton on her vagina. Then she was sent to the Srinagar Hospital along with police where she was medically been examined. Her statement was also recorded by the S.D.M. Her Kurta (KAMEEJ) and Salwar which she worn at the time of incident along with bed sheet and pillow were taken by police and were marked as Exs.1 to 4. The clothes viz. Maxi and underwear, which after wearing them, she had gone to the hospital are Exs.5 and 6. In cross-examination, she has stated that on the upper part of her house, in two rooms, two teachers were also living on the date of incident and adjacent to the room of respondent-accused Nanda 8 Singh, Ram Chandra was also residing there and in the upper side of room of respondent-accused, Dwarika Prasad was residing. She has further stated in her cross- examination that before threatening of the doctor, she has informed the doctor that two boys had come in her room and they had caused injury by piercing wood in her private part. 12. P.W.3 is Km. Rekha, who has stated her age as 10 years at the time of recording of her statement before the court. She has stated that respondent-accused Nanda Singh was known to her who is living near to her room on rent. On the date of incident, her father had gone to her village for ploughing the land and she along with her sister Shakuntala had gone to the room of respondent-accused Nanda Singh for sleeping. After hearing the noise of her sister Shakuntala, she wake up in the night and tried to open the bolt door, however she could not succeed. She also stated that her sister Shakuntala told her that respondent-accused Nanda Singh has committed bad work with her. On the next day morning, Shakuntala was taken to the hospital by respondent-accused Nanda Singh. 13. P.W.4 is Bhanu Prakash Devli who has stated that Sureshanand was posted as a watchman in Sanskrit Mahavidyalaya, Rudraprayag. Two daughters of Sureshanand namely Shakuntala and Rekha were also residing with him. The house in which Sureshanand is living is a three-storey house. Sureshanand was living in first floor, in the second floor Ram Prasad is living and in the third floor, he was residing. Near to this house, respondent-accused Nanda Singh was also living. On 1.11.1989, he came back at his home. On that day at about 2:00 P.M. he came to know about the said incident. On 11.11.1989, the I.O. has recovered the 9 Kurta and Salwar from the room and prepared a Fard, i.e. Ex.Ka-5. The bloodstained bed sheet was also recovered from the room of respondent-accused Nanda Singh and Fard was also prepared, i.e. Ex.Ka-6. 14. P.W.5 is Lallu Singh, SDM, who has stated that on 5.12.1989, he was posted as SDM Ukhimath. On that day, he recorded the statement of Km. Shakuntala u/s 164 Cr.P.C., i.e. Ex.Ka-7. 15. P.W.6 is S.O. Bharat Singh Yadav, I.O. of the case, who has stated that he started the investigation of this case on 3.11.1989. From 1.11.1989 up till when he received the investigation, the investigation was carried out by S.I. Nar Pal Singh of P.S. Rudraprayag. During the course of investigation, he recorded the statements of witnesses, inspected the place of occurrence, prepared the Fards and after completing the investigation, he filed the charge sheet against the respondent-accused Nanda Singh, i.e. Ex.Ka-16. 16. Thereafter, the statement of the respondent/ accused Nanda Singh was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. In reply to question no.21, he has stated that the witnesses have given the evidence against him on the pressure of the police and the medical officer. In reply to question no.22, he has stated that he has enmity with the Medical Officer of Rudraprayag. The doctor had allegations against him that he was concealing his letters and in the morning, the victim had met him. In reply to question no.23, he has stated that he took the victim for the medical treatment before the doctor and the doctor has threatened the victim and took her signatures on the 10 report under pressure. However, he did not produce any oral or documentary evidence in his defence. 17. Sri M.A. Khan, learned Brief Holder for the State/appellant has submitted that the prosecution has proved its case against the respondent-accused Nanda Singh beyond reasonable doubt u/s 376 IPC. Per contra, Sri Pankaj Purohit, learned counsel for the respondent argued that the prosecution has not proved its case against the respondent-accused beyond reasonable doubt. I find force in the argument advanced by counsel for the respondent-accused due to the following reasons:- A. There is only sole evidence of P.W.2 Km. Shakuntala who has stated in her statement that respondent- accused Nanda Singh committed rape with her. But P.W.1 Dr. Avinash Saxena has stated in her evidence that no definite opinion about the rape can be given. In the supplementary report, she has stated that Vaginal Smears are negative for spermatozoa and gonococci. Thus, the evidence of P.W.2 Km. Shakuntala is not corroborated with the medical evidence of P.W.1 Dr. Avinash Saxena as well as from the supplementary medical report, i.e. Ex.Ka-2. It is also pertinent to mention here that though the conviction can be made on the solitary evidence but that too only when the solitary evidence is cogent, reliable and in tune with probabilities and inspires implicit confidence. However, in the present case, the solitary evidence of Km. Shakuntala does not inspire implicit confidence and also does not get corroboration from the medical evidence. Hence on the basis of the sole evidence which does not get corroboration from the medical evidence and does not inspire confidence, it is not safe to convict the respondent-accused Nanda Singh. I am fortified in my view with the verdict of Hon’ble Apex Court in the case of “Joseph Vs. State of Kerala reported in 2003 (1) Supreme Court Cases, 465”. Para 13 of the said 11 judgment is essential to mention which is reproduced as under: - “13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” B. P.W.2 Km. Shakuntala has stated in her evidence that before threat of the doctor, she has informed the doctor at Rudraprayag that two boys had come in her room and had caused injuries in her private part by piercing wood. Thereafter, the victim lodged the FIR being threatened by the doctor. This fact gets corroboration from the statement of respondent-accused Nanda Singh recorded u/s 313 Cr.P.C. in which he has stated that he had enmity with the Medical Officer at Rudraprayag as the said doctor had allegation against him that he was concealing his postage. Due to this enmity, under the pressure of the doctor, the victim has lodged the FIR which also creates a doubt in the prosecution case. 12 C. P.W.1 Dr. Avinash Saxena, Medical Officer, has also stated in her cross-examination that the injuries on the private parts of the victim may be caused by blunt projectile organ. This fact also gets corroboration from the evidence of P.W.1 Km. Shakuntala who has stated in her cross-examination that two persons had come in her room and pierced wood in her private parts. Thus, this fact further creates a doubt in the prosecution story. D. The victim Km. Shakuntala had lodged the FIR on 1.11.1989 and she was medically examined at Rudraprayag on the same day on 1.11.1989 by the Medical Officer and her statement was also verified by the said Medical Officer of Rudraprayag. But no injury report of the Medical Officer of Rudraprayag, who has examined the victim first time, has been produced by the prosecution before the trial court and even the said Medical Officer of Rudraprayag was not examined in the trial court. Besides this, later on the victim was also medically examined at Srinagar and that medical certificate has also not been produced by the prosecution. The victim Km. Shakuntala herself has deposed in the court that from Rudraprayag, she was sent to Srinagar along with police and there she was medically examined. But no medical report of the Srinagar Hospital and no Medical Officer either from Rudraprayag or of Srinagar Hospital was examined before the trial court. All these facts further create a doubt in the prosecution story. E. The victim was medically examined on 4.11.1989 by P.W.1 Dr. Avinash Saxena after delay of four days and delay of examining the victim after four days of incident has not been explained sufficiently which creates a doubt in the prosecution story. Even otherwise, by not producing the Medical Officers either of Rudraprayag or 13 of Srinagar Hospitals as well as by not producing the medical certificates issued by those hospitals goes to create a doubt in the prosecution story. F. The statement of P.W.3 Km. Rekha, sister of victim, has also created a doubt in the prosecution case as on the date and time of incident, she herself was present at the place of occurrence but she has stated in her evidence that the incident was narrated to her by her sister Km. Shakuntala, the victim. If P.W.3 Km. Rekha would have been present on the spot on the fateful night, then she must have seen the incident herself. Thus, this fact further creates a doubt in the prosecution story. G. By calling both the sisters i.e. P.W.2 Km. Shakuntala and P.W.3 Km. Rekha by the respondent- accused Nanda Singh at his home, as alleged by the prosecution case, and by only committing rape with P.W.2 Km. Shakuntala, also creates a doubt in the prosecution story as if the respondent-accused Nanda Singh wanted to commit rape with victim Km. Shakuntala, then he would not have called P.W.3 Km. Rekha in his room. This fact further creates a doubt over the presence of P.W.3 Km. Rekha on the place of occurrence. H. Near the locality where the rape with the victim is said to have been committed, so many other people were also living as has been stated in the evidence of P.W.4 Bhanu Prakash Devli, but the victim has not disclosed the incident to any of the persons of the locality which further goes to create a doubt in the prosecution story. I. The Scientific Officer, Agra has submitted his report i.e. Ex.Ka17 and in items No.1 to 9 viz. Salwar, Kurta, Bedsheet, Maxi, Underwear, Cotton, Trouser (Payjama), 14 piece of cloth and underwear; which were sent to him by the I.O. for chemical examination, he has opined that from Item Nos.1 to 9, no spermatozoa was found, which further creates a doubt in the prosecution story. J. S.I. Nar Pal Singh, who has investigated the matter on the very first day i.e. from 1.11.1989 up to 3.11.1989, was not examined by the prosecution which further creates a doubt in the prosecution case. K. Besides the above, it is settled law that where two views are possible and one of the views is possible which was taken by the trial court, then at the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do no, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two 15 views are possible, the High Court should not have interfered