RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.130 OF 2001 (OLD NO.3068 of 1999) Nirmal Haldhar ……… Appellant Versus The State .……… Respondent Dated: November 10, 2010 Mr. R.S. Sammal, Advocate for the appellant Mr. T.C. Agarwal, 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 5.11.1999 passed by Additional Sessions Judge/Special Judge (E.C. Act), Nainital in Sessions Trial No.33 of 1995, State v. Nirmal Haldar and others, whereby the learned Addl. Sessions Judge/Special Judge convicted the appellant-accused Nirmal Haldar under Section 376(g) of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced him to undergo rigorous imprisonment for a period of ten years with a fine of ` 5,000/- and in default of payment of fine, two months’ simple imprisonment was further awarded to him. The appellant-accused was further convicted u/s 395 IPC and was sentenced to ten years’ R.I. with a fine of ` 5,000/- and in default of payment of fine, two months’ simple imprisonment was further awarded to him. Both the sentences were directed to run concurrently. However, the co-accused Virendra Mistri, Anand Kumar, Haripad and 2 Gokul were acquitted by the trial court from the charges levelled against them. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that complainant Kartik Thikedar lodged a first information report at P.S. Rudrapur on 2.11.1994 with the averments that in the night of 25/26.10.1994 he along with his wife Smt. Chandni, three children and mother Smt. Kalidasi was sleeping in the room and in the adjoining room wife of his younger brother, namely, Smt. Savirti along with her four children were sleeping. Lantern was providing light in these two rooms. It is alleged that at about 1 PM some one threw the light of torch from his window. On hearing the sound of footsteps, as soon as he and his wife opened the door, appellant-accused Nirmal Haldhar, resident of his village along with his two companions entered into his house and tied his hand with his muffler. It is further alleged that after some time the appellant-accused took wife of his brother in the room and committed rape with her. It is further alleged that one accused also committed rape with her wife. Thereafter other two accused committed rape with Smt. Savitri. Thereafter the appellant-accused and his five companions taken away two cycles, four steel plates, four glasses, four steel cups, one blouse piece, two pairs of sleepers and a bed sheet from their house. With these averments, the FIR was lodged by the complainant Kartik Thikedar in the police station. That FIR is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared by Head Mohirror Shankar Nath, i.e. Ext.Ka-6. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-7. The investigation of the case was entrusted to PW8 Virendra Singh, who during the course of 3 investigation, recovered the lantern and prepared a fard thereof i.e. Ext.Ka-2 and Ka-3. On 3.11.1994, Smt. Chandni and Smt. Savitri were got medically examined at Jawahar Lal Nehru Hospital, Rudrapur by PW4 Dr. Mamta, who after medical examination, prepared medical reports i.e. Ext.Ka-4 and Ka-5. During the course of investigation, the I.O. prepared the site-plans of the place of incident and place of recovery of cycle, which are Ext.Ka-10 and Ka-11 and also recorded the statement of witnesses and after completing the investigation, he filed the charge sheet against the appellant-accused and co-accused (acquitted by the trial court), which is Ext.Ka-12. 4. After receiving the charge sheet, learned Chief Judicial Magistrate, Naintal, committed the case to the court of Sessions on 17.1.1995, after giving necessary copies to the appellant-accused as provided u/s 207 Cr.P.C. It appears from record that the case was transferred to Addl. Sessions Judge for hearing and disposal as per law. 5. On 31.5.1995, learned Addl. Sessions Judge, Nainital, framed the charge of offence punishable under Section 376 and 395 of IPC against the appellant-accused and co-accused (acquitted by the trial court). The charge was read over and explained to each of them, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined as many as eight witnesses, namely, PW1 Kartik, complainant of the case, PW2 Smt. Chandni, PW3 Smt. Sumitra alias Savitri, PW4 Dr. Mamta, PW5 H.C. Shankar, PW6 Kale Singh, PW7 Jagdish Chandra and PW8 Virendra Singh. 4 7. Thereafter the statements of the appellant- accused and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them. However, they have 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 Special Judge/Addl. Sessions Judge, Nainital, vide his judgment and order dated 5.11.1999 convicted and sentenced the appellant-accused as mentioned above. Against the said judgment and order, the appellant-accused preferred the present appeal. 9. To prove its case, the prosecution has examined PW1 Kartik who has not supported the prosecution case and was declared hostile. However, in examination-in-chief, he has given evidence against the present appellant- accused but for rest of the accused persons he has not supported the prosecution case. In cross-examination he stated that he is residing in Anandkheda from last two years and the appellant-accused Nirmal Haldhar also lived there. He had purchased a place for accommodation from the appellant-accused in ` 4,500/-. The appellant-accused was his neighbour. He further stated that Dineshpur Police Chowki is at a distance of about less than 1 km from his house. He had not lodged any report of the said incident in that police chowki. 10. PW2 Smt. Chandni was cited as a witness of the case but she has not supported the prosecution case and was declared hostile. However, she has stated that out of the six accused persons she had identified the appellant- accused but he had not committed rape with her and she 5 does not know the accused who had committed rape with her. 11. PW3 Smt. Sumitra has made allegations against the appellant-accused regarding rape but she did not support the prosecution case for rest of the accused and therefore declared hostile. 12. PW4 Dr. Mamta was posted as Medical Officer at Jawahar Lal Nehru Hospital, Rudrapur on 3.11.1994 and on that day she medically examined Smt. Chandni and Smt. Savirti at 8:10 AM and 8:25 AM respectively and thereafter prepared the medical reports Ext.Ka-4 and Ka-5. She further stated that there was no external injury on the person of Smt. Chandni and Smt. Savitri and slides of vaginal smear of both the victims were taken by her and were sent to pathologist for examination. 13. PW5 Head Constable Shankar has prepared the Chik FIR of the case (Ext.Ka-6) and has also made entry in the G.D. (Ext.Ka-7). He has also proved the G.D. entry Ext.Ka-8. 14. PW6 Kale Singh was posted as Constable at P.S. Rudrapur on 4.11.1994. He stated that on 4.11.1994 co- accused Haripad and Virendra Mistri were arrested and from the possession of Haripad one knife was recovered and from Virendra Mistri one cycle was recovered. 15. PW7 S.I. Jagdish Singh has stated that on 4.11.1994 he arrested three persons at about 10:45 PM. On being asked, one disclosed his name as Haripad from whose possession one knife was recovered. Second one told his name as Virendra Mistri from whom one cycle was recovered and third accused told his name as Mangal. He 6 further stated that these accused persons confessed their guilt of the said incident. 16. PW8 Virendra Singh is the Investigating Officer of the case. During the course of investigation, he recorded the statement of witnesses, prepared the site-plans Ext.Ka- 10 and 11 and also prepared the Fard Ext. Ka-2 and 3 regarding recovery of lantern and on completion of investigation, he filed the charge sheet Ext.Ka-12 against the appellant-accused and others. 17. Thereafter the statements of the appellant- accused and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them. However, they have not produced any oral or documentary evidence in defence. 18. Learned counsel for the appellant-accused argued that the prosecution has not proved its case against the appellant-accused beyond reasonable doubt. I find force in the argument put forth by learned counsel for the appellant-accused, due to following reasons:- a) That the alleged incident was taken place in the intervening night of 25/26.10.1994 and as stated by the complainant himself, Dineshpur Police Chowki was at a distance of less than 1 km from his house but he did not lodge the report in Dineshpur Police Chowki rather he lodged the report at Rudrapur Police Station which was a distance of 12 kms from the place of occurrence and that too on 2.11.1994 i.e. about 8 days later and this delay in lodging the FIR has not been explained by the prosecution, which is fatal to the case of prosecution. Reliance is placed 7 upon the case of State of Karnataka v. Mapilla P.P. Soopi reported in (2003) 8 SCC 202, wherein at para 4, the Apex Court has held 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.” b) That the medical examination of Smt. Savitri and Smt. Chandni was conducted on 3.11.1994 by PW4 Dr. Mamta who prepared the slides of vaginal smear of the victim and sent to pathologist for examination but there is no such report of vaginal smear examination on record which could have strengthen the case of prosecution. Even from the medical report, allegation of rape is not proved and further as stated by the medical officer no external injury was found on the person of either of the victim. Thus, the prosecution story does not get corroborated from the medical evidence. c) That PW1 Kartik Thikedar has stated that the appellant-accused Nirmal Haldar committed rape with her wife Smt. Chandni however Smt. Chandni, who was cited as a victim of the case, has stated that the appellant-accused has not committed rape with her. There is contradiction in the statement of these two witnesses, which creates a doubt in the prosecution story. d) That there is no iota of evidence on the record regarding looting of articles by the appellant- accused and this allegation also remains uncorroborated against him. Even the recovery of 8 cycle and knife was shown from the possession of co-accused Haripad and Virendra Mistri and they have been acquitted by the trial court. 19. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and the facts and circumstances of the case discussed above, 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-accused beyond reasonable doubt. As such, the trial court was in error in brushing aside serious infirmity in the prosecution case and the impugned judgment and order of the trial court, in view of the evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 20. For the foregoing reasons, the appeal is allowed. The judgment and order dated 5.11.1999 passed by Additional Sessions Judge/Special Judge (E.C. Act), Nainital in Sessions Trial No.33 of 1995, State v. Nirmal Haldhar and others, is hereby set aside. Consequently, the conviction and sentence, as directed by the court below, which has been discussed above, is also set aside. Appellant is on bail. He need not surrender unless required in any other case. 21. Let the lower court record be sent back. (Dharam Veer, J.) 10.11.2010 RG