IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.278 OF 2001 (OLD NO.2 77/1993) Dhara Ballabha S/o Padam Dutt R/o Village Masar, P.S. Ranikhet District-Almora ……… Appellant Versus The State ……… Respondent Dated: November 21, 2008 Sri Siddhartha Sah, Adv. holding brief of Sri Sharad Sharma, learned counsel for the appellant Sri Harish Pujari, learned Addl. G.A. 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 29.1.1993 passed by Sessions Judge, Chamoli in Sessions Trial No.14/1991, State Vs. Dhara Ballabha, whereby the learned Sessions Judge has convicted the accused/appellant-Dhara Ballabha u/s 511 of Indian Penal Code, 1860 (hereinafter to be referred as the I.P.C.) for attempting to commit rape and sentenced him to undergo five years’ rigorous imprisonment with a fine of Rs.500/-. In default of payment of fine, further six months simple imprisonment was awarded. 2. I have heard Sri Siddhartha Sah, Advocate holding brief of Sri Sharad Sharma, learned counsel for the appellant and Sri Harish Pujari, learned Addl. G.A. for the State and perused the entire material available on record. 3. In brief, the prosecution case is that Kamla Devi moved an application before the Munsif Magistrate, Karnaprayag with the averments that she was working in Balwadi school and she was a resident of Village Hartoli which was at a distance of 1 km from Talwadi and the market of Hartoli was in Talwadi. She has further averted that from last six months, the appellant/accused was keeping evil eyes on her. On 20.3.1988 at about 8 P.M. she was returning from Gwaldum to her house. Upto Talwadi she came by bus and after that she was going to her house by foot. When she reached near the Binoda Gadhera then the appellant/accused suddenly reached at the place of occurrence and committed rape with her against her wishes. It was also stated that the appellant/accused told her that he would kill her if she will disclose this incident to anybody. It was also stated that the appellant/accused assured her for marriage and asked her to met him after 2, 3 days at Talwadi. After that the complainant-Kamla Devi came to her house and washed her clothes. Later on, in the month of April-June she came to know that she was pregnant. Then in the first week of June she met the accused/appellant. The accused/appellant told her that he is going to his house and when he would come back then he would marry with her. She further stated that after that the accused/appellant has not came back from his house. Then she narrated the whole incident to Patwari on 18.7.1988. She further stated that the appellant/accused has committed rape with her against her wishes due to which she was pregnant. With the same averments, Kamla Devi (P.W.1) moved an application before the Munsif Magistrate, Karnaprayag. That application is Ext.Ka-1. On 28.7.1988, Munsif Magistrate, Karnaprayag passed an order to Nayab Tehsildar, Tharali to register and investigate the case. Nayab Tehsildar, Tharali passed an order to Kanugo Dewal to register and investigate the matter according to law. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). On the basis of this order, Kanugo Dewal prepared the Chik F.I.R. on 24.8.1988, i.e., Ext.Ka-2. The necessary entry was also made in the G.D., copy of which is Ext.Ka-3. P.W.1 Kamla Devi was medically examined by P.W.3 Medical Officer Dr. Mayank Upadhyay on 2.9.1988 and he issued a medical certificate i.e. Ext.Ka-5. During the course of investigation, the Investigating Officer Kanugo Debal prepared the site-plan of the place of occurrence i.e. Ext.Ka.4. Later on, the investigation of this case was transferred to regular police and then the investigation was conducted by P.W.4 Nakli Singh, Sub Inspector, who during the course of investigation also prepared site-plan of the place of occurrence. That site- plan is Ext.Ka-7. The I.O. has also taken a Saree, Blouse and a Petticoat of the victim into his possession and prepared a FARD Ext.Ka-8. He has also taken an agreement into his possession. That agreement is Ext.4. After completing the investigation, the I.O. filed a charge sheet against the appellant/accused u/s 376 I.P.C. That charge sheet is Ext.Ka-9. 4. Learned Munsif Magistrate, Karnaprayag committed the case to the Court of Sessions on 16.5.1991, after giving necessary copy to the accused/appellant as provided u/s 207 Cr.P.C. 5. On 27.5.1991, learned Sessions Judge, Chamoli framed the charge of offence punishable u/s 376 I.P.C. against the accused/appellant. The charge was read over and explained to the accused/appellant who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Kamla Devi-victim, P.W.2 Bhajan Singh Negi, Supervisor Kanugo (Investigating Officer), P.W.3 Dr. Mayank Upadhyay, Medical Officer and P.W.4 S.I. Nakli Singh (Investigating Officer). 7. After that the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who has denied the allegations made against him. However, in defence, he has not produced any oral evidence but in documentary evidence he has filed the F.I.R dated 18.7.1988 that was lodged before Patwari, Talwadi. That F.I.R. is Ext.Kha-1. 8. After appreciating the entire material available on record and hearing learned counsel for the parties, learned Sessions Judge, Chamoli vide his judgment and order dated 29.1.1993 convicted and sentenced the accused/appellant as above. Feeling aggrieved by the said judgment and order dated 29.1.1993, the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that the prosecutrix Kamla Devi was medically examined by medical officer and a medical certificate dated 2.9.1988, i.e., Ext.Ka-5 was filed in which it was stated that the prosecutrix Kamla Devi is carrying a pregnancy of five months. To prove this medical certificate, the prosecution has examined P.W.3 Dr. Mayank Upadhyay, who has stated that on 2.9.1988 he was posted as Medical Officer in District Hospital. He has further stated that the prosecutrix was medically examined by him and she was 21 years old at the time of medical examination and she was carrying a pregnancy of five months. He further stated that he has issued a medical certificate i.e. Ext.Ka-5. In the cross-examination he has stated that up to 4-5 days of the completion of the menstruation pregnancy is not possible. **ekfld /keZ ds [kRe gksus ds pkj&ik¡p fnu rd xHkZ ugha jg ldrkA** 10. Further to prove its case, the prosecution has examined P.W.1 Kamla Devi, who has stated that she was married to Meharban Singh before eight years but after sometime she has been separated from Meharban Singh and started living separately. She has further stated that she was a teacher in Praudh Siksha, Talwadi and the appellant/accused was known to her. She has further stated that on 20.3.1988 when she was returning from Gwaldum then on the way she met the accused/appellant near the Binoda Ghadhera and the accused/appellant told her that he would keep her with him as a wife. On this the accused/appellant committed rape with her against her wishes. At that time it was darkness and nobody was there. She has further stated that after that she went to Patwari who assured her for the compromise. After that she was confident that the appellant/accused would keep her but the appellant/accused absconded from there. After that she moved an application in the Karnaprayag Court. That application is Ext.Ka-1. She further stated that her medical examination was done. In the cross-examination she admitted that on 18.7.1988 she has lodged a report before Patwari, Talwadi and that report was lodged u/s 506 IPC. She further stated that where the incident was said to be taken place nearby there were the houses of Narendra Singh, Rajpal Singh and Chandra Singh. She further stated that her younger brother’s name is Pushkar Singh, who is 23 years old and who is one or one and a half years younger than her. She has further stated that one doctor of Talwadi has also assured her for marriage. She further stated that after the incident she went to her house at about 9-10 P.M. and she had not told anything about the incident to her parents. Then after reaching to her house she washed her clothes. She has further stated that she has told the Investigating Officer that before two days of the incident menstruation was taken place to her. She further stated that she was married to Meharban Singh according to Hindu RITES and she was not divorced from Meharban Singh but she had left her husband-Meharban Singh. 11. P.W.2 is Bhajan Singh Negi, who has stated that on 24.8.1988 he was posted as Supervisor Kanugo at Dewal. He has stated that he had received the order of the Munsif Magistrate, Karnaprayag and the written complaint Ext.Ka-1 on the said date and then immediately he had prepared the Chick F.I.R. Ext.Ka-2 and registered the case against the accused on 24.8.1988. The entry in this regard was made in the G.D., copy of that G.D. is Ext.Ka-3. He also recorded the statement of the prosecutrix Kamla Devi on 9.9.1988 and also prepared the site-plan of the place of occurrence, i.e., Ext.Ka-4. After that the investigation of this case was transferred to regular police. 12. P.W.4 is Nakli Singh, S.I., who has stated that on 27.11.1988, he was posted as In-Charge Police Chowki Tharali, P.S. Karnaprayag. On that day, by the order dated 27.10.1988 of the District Magistrate, Chamoli, investigation of this case was entrusted to him. During the course of investigation he recorded the statement of the witnesses and also inspected the place of occurrence and thereafter prepared the site-plan. That site-plan is Ext.Ka-7. He further stated that he has taken blouse, petticoat and saree of the prosecutrix Kamla Devi in his possession and sealed the articles on the spot and the FARD was prepared Ext.Ka-8. That Blouse is Ext.1, Petticoat Ext.2 and Saree Ext.3. He further stated that on 10.1.1989 victim Kamla Devi has given him the stamped agreement, i.e., Ext.4. He further stated that after completing the investigation he has filed the charge sheet i.e. Ext.Ka-9 on 22.1.1989 against the accused/ appellant. 13. After that the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who has denied the allegations made against him. However, in defence, he has not produced any oral evidence but in documentary evidence he has filed the F.I.R dated 18.7.1988 that was lodged before Patwari, Talwadi. That F.I.R. is Ext.Kha-1. 14. Sri Siddhartha Sah, Advocate holding brief of Sri Sharad Sharma, learned counsel for the accused/appellant has submitted that on the basis of the evidence discussed above no offence u/s 511 I.P.C. for attempting to commit rape is made out against the appellant/accused. I find substance in the argument advanced by learned counsel for the accused/appellant. Learned trial court has held that on the basis of the evidence, no offence of committing rape with the prosecutrix Kamla Devi is proved against the appellant/accused since there is no medical evidence supporting the sole testimony of P.W.1 Kamla Devi and also there is no evidence in the file which shows that rape was committed with the prosecutrix by the appellant/accused therefore the trial court has not convicted the appellant/accused u/s 376 IPC and instead he was convicted u/s 511 IPC for attempting to commit rape on the basis of presumption. 15. Learned counsel for the appellant/accused has further submitted that there is sole evidence against the accused/appellant which does not inspires a confidence. I find substance in the argument advanced by learned counsel for the accused/appellant as it has discussed above that the only evidence against the accused/appellant is P.W.1 Kamla Devi and there is no other evidence which can prove that the appellant/accused has tried to commit rape with the prosecutrix. The solitary evidence available in the file is of P.W.1 Kamla Devi who has only stated in her statement that rape was committed with her by the appellant/accused but that evidence is not corroborated from the medical evidence. Thus the evidence of P.W.1 Kamla Devi does not inspires a confidence and it is a settled principle that when there is sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. I am fortified 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 this judgment is essential to mention here to, which is reproduced hereunder:- “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.” 16. Learned counsel for the accused/appellant has further stated that the prosecutrix has not stated in her statement that the appellant/accused has tried to commit rape with her and that evidence of the rape is not believable by the trial court. I find substance in the argument advanced by learned counsel for the appellant/accused since the trial court has only convicted the accused/appellant u/s 511 IPC on the basis of presumption and surmises that the accused/appellant might have tried to commit rape with the victim Kamla Devi and that finding of the trial court is not based on the evidence available on record and therefore is not sustainable in the eye of law. 17. Learned counsel for the accused/appellant has further submitted that it has come in the statement of P.W.4 Dr. Mayank Upadhyay, Medical Officer that up to 4-5 days of the completion of the menstruation pregnancy is not possible, however, the prosecutrix has stated in her statement that before two days of the said incident menstruation was taken place to her. As these two statements are contradictory to each other hence it is not proved beyond reasonable doubt that rape was committed with the victim on 20.3.1988. 18. Learned counsel for the accused/appellant has further submitted that the incident was said to be taken place on 20.3.1988 and the complaint regarding this was filed before the Munsif Magistrate, Karnaprayag on 26.7.1988 and on the basis of this complaint the F.I.R. was lodged by Kanugo Dewal on 24.8.1988. Thus the complaint was filed by the prosecutrix after about four months of the said incident. There is no explanation given from the side of the prosecution with regard to delay in lodging the F.I.R. which also creates a reasonable doubt in the prosecution story and it is also fatal for the prosecution. I am fortified my view with a judgment rendered by the Hon’ble Supreme Court in the case of State of Karnataka v. Mapilla P.P. Soopi reported in (2003) 8 SCC 202. Para 4 of this judgment is relevant to mention here, which is as follows:- “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.” 19. Learned counsel for the appellant/accused further submitted that the prosecutrix has also lodged the F.I.R. Ext.Kha-1 before Patwari, Talwadi against the accused but no allegation regarding the rape by the accused was made by the prosecutrix in the said report. In that report the prosecutrix has only alleged that she was carrying pregnancy of the accused. That F.I.R. was lodged by the prosecutrix on 18.7.1988 and on the allegations made by her a case u/s 506 IPC was registered. Thus the allegations made in the F.I.R. Ext.Kha-1 and the complaint Ext.Ka-1 do not support each other and are self-contradictory, which also creates a doubt in the prosecution story. 20. From the evidence discussed above, the evidence of P.W.1 Kamla Devi is not cogent, reliable, trustworthy and does not inspire a confidence. Therefore, no reliance can be put on the statement of P.W.1 Kamla Devi. Therefore, the conviction and sentence of the accused/appellant as awarded by the trial court on the basis of statement and evidence of P.W.1 Kamla Devi is not justified and as per law and is liable to be set aside. 21. After considering the entire facts and circumstances of the case and in view of the judgments of Hon’ble Supreme Court (supra), the prosecution has not proved its case against the accused/appellant beyond reasonable doubt and the conviction and sentence as awarded by the trial court against the accused/appellant is not correct and justified and I do not concur with the view taken by the trial court. 22. For the reasons recorded above, the appeal is allowed. The judgment and order dated 29.1.1993 passed by Sessions Judge, Chamoli in S.T. No.14/1991, State Vs. Dhara Ballabha, is hereby set aside. The conviction of the accused/appellant-Dhara Ballabha u/s 511 IPC for attempting to commit rape and sentence of five years’ R.I. with a fine of Rs.500/- is also set aside. The appellant is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. 23. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned. (Dharam Veer, J.) 21.11.2008 RG