IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.544 OF 2001 (Old No.373/1992) Umesh Singh Panwar alias Sadhu, Aged about 20 years, S/o Virendra Singh Pawar, R/o Village Olli, P.S. Cantt., Dehradun ……… Appellant Versus The State ……… Respondent Dated: October 20, 2008 Sri R.P. Nautiyal, Adv. for appellant Sri M.A. Khan, 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 05.02.1992 passed by IIIrd Additional Sessions Judge, Dehradun in Sessions Trial No.64/1990, State Vs. Umesh Singh Panwar and another, whereby the learned Sessions Judge has convicted the appellant/accused under Section 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years’ rigorous imprisonment. However, co-accused Vikram Singh Chetri was acquitted of the offence punishable under Section 376 IPC r/w Section 511 IPC. 2. I have heard Sri R.P. Nautiyal, Advocate for the appellant and Sri M.A. Khan, Brief Holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Km. Ganga (P.W.1) lodged a report stating therein that on 14.9.1989 at about 9:15 P.M., Sadhu had come at her 2 house and had committed rape with her. After sometime, another co-accused Vikram came in her house and he also tried to commit rape with her. Meanwhile, her brother Gagan Rana (P.W.3) came there due to which co-accused Vikram ran away from the place of occurrence. With the same averments, the FIR was lodged by Km. Ganga (P.W.1) on 14.9.1989 at 10:30 P.M. at P.S. Cantt. Dehradun, i.e. Ex.Ka-1. On the basis of this report, Constable Moharrir Satish Chandra Sharma (P.W.4) prepared the Chik FIR, i.e. Ex.Ka-6. The necessary entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-7. The investigation of this case was entrusted to P.W.6 S.I. Satya Pal Singh Sisodhiya. Victim Km. Ganga (P.W.1) was medically examined by P.W.2 Dr. Abha Mamgain on 15.9.1989 at 12:50 P.M., the medical report is on record. Supplementary report of victim Km. Ganga is Ex.Ka-3. Vaginal Smear Report in respect of victim Km. Ganga prepared by Pathologist is Ex.Ka-5. X-ray of victim Km. Ganga was conducted by P.W.5 Dr. B.C. Ramola and x-ray report was also prepared, i.e. Ex.Ka-10. During the course of investigation, the I.O. took in his possession the clothes of the victim which she was wearing at the time of incident and a Fard was also prepared, i.e. Ex.Ka-8. After the medical examination, victim Km. Ganga was given in the Supurdgi of her brother and Supurdginama was prepared, i.e. Ex.Ka-9. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka.11. The I.O. during the course of investigation recorded the statements of witnesses and after completing the investigation, filed the charge sheet against the appellant/accused and also against the co- accused Vikram Singh Chhetri (acquitted by trial court) under Sections 376/511 IPC, i.e. Ex.Ka-12. 3 4. After receiving the charge sheet, the ACJM, Dehradun has committed the case to the court of Sessions on 16.07.1990 after giving necessary copies to the accused persons as required under Section 207 Cr.P.C. 5. Learned IInd Addl. Sessions Judge, Dehradun framed the charge on 08.11.1990 against the appellant/ accused Umesh Singh Panwar @ Sadhu u/s 376 IPC. The charge was read over and explained to appellant/accused, who pleaded not guilty and claimed to be tried. The charge against co-accused Vikram Singh Chetri (acquitted by the trial court) was also framed by IInd Addl. Sessions Judge, Dehradun on the same day i.e. on 8.11.1990 u/s 376/511 IPC. The charge was also 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 Km. Ganga, victim and complainant of the case, P.W.2 Dr. Abha Mamgain, who has medically examined the victim, P.W.3 Gagan Rana, brother of victim, P.W.4 Constable Clerk Satish Chandra Sharma, who prepared the Chik FIR and made necessary entry in the G.D., P.W.5 Dr. B.C. Ramola, Radiologist and P.W.6 S.I. Satya Pal Singh Sisodhiya, I.O. of the case. 7. After that the statements of the appellant/ accused as well as of co-accused Vikram Singh Chetri 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 them and stated that they have been falsely implicated due to enmity. However, they did not produce any oral or documentary evidence in their defence. 4 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned IIIrd Addl. Sessions Judge, Dehradun vide her judgment and order dated 05.02.1992 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that victim P.W.1 Km. Ganga was medically examined on 15.9.1989 at 12:50 P.M. by P.W.2 Dr. Abha Mangain and her injury report was also prepared, which is on record, and the medical officer found as follows: - “Internal Examination- Vagina admits 2 fingers, Hymen torn, Old tag present, Uterus Normal Size, Laceration present at vaginal orifice. Advised- 1. X-ray of wrist, knee, elbow and ankle joint for detection of age. 2. Vaginal smear sent for histopathological examination of presence of sperms.” Thereafter x-ray of victim Km. Meenu was conducted by P.W.5 Dr. B.C. Ramola and x-ray report was prepared i.e. Ex.Ka-10 and x-ray report given by the Dr. B.C. Ramola is reproduced as under: - X-ray Report 1. Epiphysis medial epicondyle shows partial fusion, other epiphysis lower end humerus, upper end radius ulna are fused with their respective shafts. 5 2. Epiphysis lower end radius ulna not yet fused. All the carpal bones are fused. 3. Epiphysis ankle and knee joint are not yet fused with their respective shafts. On the basis of the aforesaid X-ray report, P.W.2 Dr. Abha Mamgain prepared the supplementary report (Ex.Ka-3) of victim Km. Ganga and she opined as under: - 1. Age of girl is about sixteen years 2. No definite opinion about rape can be given. 10. To prove the aforesaid medical report, the prosecution has examined P.W.2 Dr. Abha Mamgain who has stated that on 15.9.1989 at 12:50 P.M., she had medically examined the victim Km. Ganga and prepared medical report and after receiving of x-ray report, she prepared supplementary medical report, i.e. Ex.Ka-3. In cross-examination in para 9, she has stated that the victim was habitual to sexual intercourse. She has further stated in para 10 of her cross-examination that there may be age difference of six months plus (+) and minus (-). 11. To prove the X-ray report, the prosecution has examined P.W.5 Dr. B.C. Ramola who has stated that on 15.9.1989, he was posted as Radiologist in Doon Hospital. He also proved the X-ray report Ex.Ka-10, which has been quoted above in para 9 of the judgment. 12. To further prove its case, the prosecution has examined P.W.1 Km. Ganga who has stated that on 14.9.1989, the time was about 9:15 P.M. when she was in her house. At that time, Sadhu came to her house and he committed rape with her forcibly against her wishes. After that Sadhu had gone from the place of occurrence. After some time, another co-accused Vikram (acquitted by the 6 trial court) came there and he also tried to commit rape with her forcibly, however in the meanwhile her brother Gagan came there at the place of occurrence due to which Vikram ran away. The report of this incident was lodged by her at the police station, i.e. Ex.Ka-1. Her Salwar and underwear were also taken by the police into possession and Fard was prepared. She was also taken for the medical examination in the hospital where she was medically examined and her x-ray was also conducted. After the x- ray was conducted, she was given in the Supurdgi of her brother Devraj. In cross-examination in para 8 she has stated that at the time of incident, she remained with Sadhu for half an hour. For that half an hour, Sadhu had sat in the same cot in which she was sitting. 13. P.W.3 is Gagan Rana who has stated that on the date of incident when he reached at his house at about 9- 9:15 P.M., then Sadhu and Vikram were not there. His sister informed him that Sadhu and Vikram have committed bad work with her forcibly. His sister had gone to lodge the report at the police station. 14. P.W.4 is Constable Clerk Satish Chandra Sharma who has stated that on 14.9.1989 at 10:30 P.M., Km. Ganga had given the written report in the police station, on the basis of which he prepared the Chik FIR, i.e. Ex.Ka-6. The necessary entry was also made in the G.D., the copy of which is Ex.Ka-7. Fard for taking the clothes of victim into possession was also prepared by police, i.e. Ex.Ka-8. The victim Km. Ganga was given in the Supurdgi of her brother Devraj and Supurdginama was also prepared, i.e. Ex.Ka-9. 15. P.W.6 is S.I. Satya Pal Singh Sisodhiya who has stated that on 15.9.1989, the investigation of this case was entrusted to him. During the course of investigation, he recorded statements of witnesses and inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-11. 7 After completing the investigation, he filed the charge sheet, i.e. Ex.Ka-12. 16. After that the statements of the appellant/ accused as well as of co-accused Vikram Singh Chetri 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 them and stated that they have been falsely implicated due to enmity. However, they did not produce any oral or documentary evidence in their defence. 17. Sri R.P. Nautiyal, learned counsel for the appellant/accused argued that the appellant/accused is not named in the FIR. The First Information Report was lodged by victim Km. Ganga against one Sadhu and the name of appellant/accused is not Sadhu, hence it creates a doubt in the prosecution story. I find substance in this argument advanced by counsel for the appellant/accused as the accused is not named in the FIR and it has come in the evidence of victim Km. Ganga that she remained with one Sadhu for half an hour and even that Sadhu sat in the same cot in which the victim was sitting, which shows that she is well known to Sadhu before the incident. Hence, this conduct of victim creates a reasonable doubt in the prosecution story. 18. It was further argued on behalf of appellant/ accused that the oral evidence of the victim does not corroborate with the medical evidence which creates a reasonable doubt in the prosecution story. I also find substance in this argument as the victim Km. Ganga has stated in her evidence that the person namely Sadhu has committed rape with her and she remained with him for half an hour without any objection. 8 As per the evidence of the victim, when another accused Vikram Singh Chettri (acquitted by the trial court) tried to commit rape with her and her brother had reached on the place of occurrence, then only she lodged the report of the incident. Her brother Gagan Rana P.W.3 has stated in his evidence that he has not seen either the appellant/accused or the co-accused Vikram Singh Chetri on the spot. Even otherwise, P.W.2 Dr. Abha Mamgain has opined in her report that no definite opinion about the rape can be given. Besides this, in the report of Pathologist i.e. Ex.Ka-5, it was opined that Vaginal Smear is negative for Spermatozoa. Thus, it is proved that the oral evidence as well as medical evidence does not corroborate the version of the victim Km. Ganga, which also creates a doubt in the prosecution story. 19. It was further argued on behalf of appellant/ accused that as per the medical report, the victim Km. Ganga is about 16 years and as per the settled law, the age difference of two years is permissible on either side and if two years age margin would be given on higher side, then the prosecutrix is more than 18 years of age. Apart from the above, the above-said facts and circumstances also show that the victim Km. Ganga was a consented party with some accused namely Sadhu, hence there is no crime against the accused Sadhu against whom the FIR was lodged because the victim Km. Ganga herself was a consented party and she was also major on the date of incident. These facts and circumstances further creates a doubt in the prosecution story. 20. From the above-said discussion made and in view of the foregoing facts and circumstances of the case, the prosecution has not proved its case beyond reasonable doubt against the appellant/accused Umesh Singh Panwar u/s 376 IPC and the learned court below has erred in 9 convicting the appellant/accused u/s 376 IPC. Hence, I do not concur with the view taken by the trial court in convicting the appellant/accused u/s 376 IPC. 21. For the reasons recorded above, the appeal preferred by the appellant/accused Umesh Singh Panwar is allowed. The judgment and order dated 05.2.1992 passed by IIIrd Addl. Sessions Judge in S.T. No.64/1990, State vs. Umesh Singh Panwar and another, for convicting and sentencing the appellant u/s 376 IPC for seven years R.I., is hereby set aside. Appellant/accused Umesh Singh Panwar is acquitted of the offence punishable u/s 376 IPC. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) October 20, 2008 Rajeev Dang