HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 763 of 2001 (Old no. 541 of 1991) Diwan Ram S/o Sri Prahlad Ram, R/o village Dhadi Gaon, Patti Gallagaon, Post Isda via Lohaghat, District Pithoragarh. ------- Accused/appellant. Versus The State. ------- Respondent Sri Pradeep Hairiya, learned counsel for the appellant. Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: June 25, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 21.02.1991 passed by learned Sessions Judge, Pithoragarh in Sessions Trial no. 17 of 1990 State vs. Diwan Ram whereby the learned Sessions Judge has convicted the accused/appellant for the offence punishable u/s 376, 323 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo 7 years’ R.I. and 6 month’s R.I. under Section 376, 323 I.P.C. respectively. It was further directed that both the sentences shall run concurrently. 2. I have heard Sri Pradeep Hairiya, learned counsel for the appellant and Sri Harish Pujari, learned Addl. Govt. Advocate for the State and perused the record of the Trial Court and entire material available on record. 3. The prosecution case, in brief, is that on 01.04.1990 at about 7-8 a.m. when the complainant PW-2 Vimla Devi had gone to a ravine (GADHERA) for taking bath and washing her clothes. On that day she was having 4th day of her menstruation. She had taken two boys alongwith her at the 2 ravine. When the complainant, after washing clothes was preparing herself for taking a bath, in the meanwhile the accused/appellant Diwan Ram had come out from the bushes and had committed rape with the complainant Smt. Vimla Devi. Seeing the incident, the two children who had come alongwith her, had ran away from the spot making screams. The accused/appellant had also threatened her that in case she had informed to anybody else about the incident then he would kill her and her family. The complainant informed the incident to the Gram Pradhan of the village. When the Gram Pradhan did not take any action then the complainant had gone to the Headquarter of the Patwari. As the Patwari was not present at the Headquarter, therefore the complainant lodged report Ext. Ka-2 before the Sub Divisional Magistrate, Lohaghat on 02.04.1990. The Sub Divisional Magistrate directed the Kanoongo, Barakot on 02.04.1990 to take necessary action immediately. When no action was taken on the written report Ext. Ka-2 of the complainant Smt. Vimla Devi, then she again moved application Ext. Ka-3 before the District Magistrate, Pithoragarh on 04.04.1990 reiterating the averments stated in the written report Ext. Ka-2. On the basis of the written report Ext. Ka-2, the Chik Report Ext. Ka-5 was prepared by PW-5 Diwani Ram Patwari on 05.04.1990. The Patwari PW-5 started investigating the case and during the course of investigation he prepared the site-plan of the place of occurrence Ext. Ka-6 on 06.04.1990. He has also prepared FARD Ext. Ka-7 in regard to the injuries received by the victim Vimla Devi. The victim Vimla Devi had also given a written application to the Patwari on 05.04.1990, that application is Ext. Ka-4. The I.O., during the course of investigation has also recorded the statement of victim Vimla Devi, her husband Bachi Ram and Nirmal Kumar. Thereafter the investigation of the case was transferred to PW-6 Ambi Ram- Kanoongo on 07.04.1990 who took the victim for conducting her medical examination. PW-1 Dr. S.C. Upreti, Medical Officer, Govt. 3 Ayurvedic Hospital Karnkarayat on 08.04.1990 at 11:30 a.m. examined medically to the victim Vimla Devi and prepared medical report Ext. Ka-1. During the course of investigation PW-6 Ambi Ram-Kanoongo recorded statement of the witnesses and after completion of the investigation he submitted charge sheet Ext. Ka-8 against the accused/ appellant u/s 376, 323 I.P.C. 4. Learned Chief Judicial Magistrate, Pithoragarh on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 28.07.1990 u/s 209 Cr.P.C. 5. Learned Sessions Judge, Pithoragarh after hearing the parties on 30th August 1990 framed the charge of offence punishable u/s 376,323 I.P.C. against the accused/appellant Diwan Ram. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. The prosecution, to prove its case, has examined PW-1 Suresh Chandra Upreti-Medical Officer, who medically examined the victim Vimla Devi, PW-2 Smt. Vimla Devi- victim, PW-3 Sri Bachi Ram-husband of the victim, PW-4 Nirmal Kumar, PW-5 Diwani Ram Patwari -one of the I.O. and PW-6 Ambi Ram-Kanoongo, the Investigating Officer. 7. The oral and documentary evidence was put to the accused/appellant in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. In reply to the question no. 25, he stated that on 01.04.1990 the complainant Vimla Devi had killed his male buffalo and on 02.04.1990 he lodged an F.I.R. due to which Vimla Devi keeps animosity with him therefore, feeling resentment, this case has 4 been lodged against him. The accused/appellant did not produce any oral or documentary evidence in his defence. 8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge Pithoragarh vide his judgment and order dated 21.02.1991 has convicted the accused/appellant for the offence punishable u/s 376, 323 I.P.C. and sentenced him to undergo 7 years’ rigorous imprisonment for the offence punishable u/s 376 I.P.C. and 6 months’ rigorous imprisonment for the offence punishable u/s 323 I.P.C. It was further directed that both the sentences shall run concurrently. Aggrieved with the impugned judgment and order dated 21.02.1991, the present accused/appellant has come up in the instant Criminal Appeal. 9. Before further discussions, it is pertinent to mention the injuries found on the person of the victim Smt. Vimla Devi. PW-1 Dr. Suresh Chandra Upreti, Medical Officer Govt. Ayurvedic Hospital Karnkarayat on 08.04.1990 at 11:30 a.m. examined medically the victim Vimla Devi and prepared medical report Ext. Ka-1. The injuries found on the person of the victim Vimla Devi are reproduced hereunder:- 1. A contusion present on the right breast size 7cm. x 3cm. Colour-bluish. This contusion is just above to the right nipple, 2. A contusion situated on the left breast 7cm. above to the left nipple size 3cm. x .5 cm. Colour bluish, 3. A contusion situated on the left lag. 7cm. above to the left petala size 3cm. x .5cm. Colour bluish. The doctor has opined that all the injuries were simple and caused by hard and blunt object. 10. To prove its case, the prosecution, first of all, has examined PW-1 Dr. Suresh Chandra Upreti, Medical Officer Govt. Ayurvedic Hospital, Karakarayat, Pithoragarh who has 5 stated that on 08.04.1990 Sri Ambi Ram-Kanoongo brought Smt. Vimla Devi for her medical examination and on that day at 11:30 a.m. he examined medically Smt. Vimla Devi and found the injuries mentioned in para-9 of the above. He has further stated that the injuries were simple in nature and could be caused by some blunt object. In this regard he prepared the injury report Ext. Ka-1. 11. PW-2 is Smt. Vimla Devi, the victim who has stated that the accused Diwan Ram is her brother-in-law (DEVER) in relation and belongs to her village. The said incident was said to have been taken place on 1st April 1990. On that day she was having 4th day of her menstruation and she had gone for having a bath in the ravine (GADHERA). Time was 7-8 a.m. in the morning and she has taken two children Pooran Ram and Nirmal Kumar alongwith her at the ravine. At the ravine, she washed her clothes. Both the children were playing at some distance. At the moment when she prepared herself for taking bath, the accused/appellant had come out of the bushes and he committed rape on her. The accused also threatened her not to disclose this fact to anybody. She made screams and her screams were heard by Keshavi Devi. Then the accused/ appellant had gone from the place of occurrence and after some time her husband had come there and she narrated entire incident to her husband. She alongwith her husband had gone at the Headquarter of the Patwari, who was not present at the Headquarter. On the next day on 02.04.1990 she lodged the F.I.R. Ext. Ka-2 to the S.D.M. Lohaghat. She also moved an application Ext. Ka-3 to the District Magistrate, Pithoragarh. She was also medically examined by the Medical Officer. In the cross-examination in para-6 she has stated that 2 or 3 years’ before her mother had also lodged a report against her husband for committing a crime of rape. A case was registered against her husband. She was sent to NAARINIKETAN. In her cross-examination in para-10 she has 6 stated that there is a Govt. Hospital near her village at Barakot after that the Govt. Hospital situates at Lohaghat. She has also stated that Ext. Ka-4 application was given by her to the Patwari. 12. PW-3 is Bachi Ram, who is not an eye witness of the incident. PW-4 is Nirmal Kumar, whose name is not mentioned in the First Information Report as an eye witness. 13. PW-5 is Diwani Ram, one of the Investigating Officer of the case, who has stated that he remained posted as Patwari at Patti Gallagaon. On 05.04.1990 at 5:00 p.m. he received report Ext. Ka-2 and on the basis of that report, he prepared Chik Report Ext. Ka-5 and a case was registered against the accused/ appellant u/s 376 I.P.C. He commenced investigating of the case on the same day. During investigation he recorded statement of victim Vimla Devi and her husband Bachi Ram. Vimla Devi has given an application Ext. Ka-4. On the next day on 06.04.1990 he prepared the site-plan Ext. Ka-6 on the pointing out of Vimla Devi. He also seen the injuries on the person of Vimla Devi and in this regard he prepared a FARD Ext. Ka-7. On the same day he recorded the statement of Nirmal Kumar. Thereafter the investigation was transferred to PW-6 Ambi Ram-Kanoongo. In cross-examination in para no. 12 he has stated that on 04.04.1990 the appellant/accused Diwan Ram has lodged a report against Bachi Ram and Vimla Devi on the basis of which he conducted investigation. 14. PW-6 is Ambi Ram-Kanoongo-Investigating Officer, who has stated that in the month of April, 1990 he was posted as Kanoongo at Barakot. Patti Gallagaon was within his area. Investigation of the case was entrusted to him on 07.04.1990. He examined the case diary. On 08.04.1990 he sent the victim Vimla Devi for medical examination. During the course of investigation he recorded the statement of the witnesses and 7 after completing investigation, he submitted charge sheet Ext. Ka-8 against the accused/appellant. 15. The oral and documentary evidence was put to the accused/appellant in the form of questions u/s 313 Cr.P.C. who, in reply, has denied the allegations made against him and has stated that he has been falsely implicated in the case. In reply to the question no. 25, he stated that on 01.04.1990 the complainant Vimla Devi had killed his male buffalo and on 02.04.1990 he lodged an F.I.R. due to which Vimla Devi keeps animosity with him therefore, feeling resentment, this case has been lodged against him. The accused/appellant did not produce any oral or documentary evidence in his defence. 16. Sri Pradeep Hairiya, learned counsel for the accused/ appellant has contended that there is sole evidence of the victim Smt. Vimla Devi against the accused/appellant which also does not inspire confidence. He has submitted that PW-3 Bachi Ram is not an eye witness and even Bachi Ram has stated in his cross examination-in-chief that when he reached at the place of occurrence then the accused/ appellant had gone from there and his wife was taking bath at that time. He has further argued that PW-4 Nirmal Kumar is a child witness, but his name did not find figure in the First Information Report. It is argued that even Nirmal Kumar in his examination-in-chief has stated that the accused/appellant had fallen down the victim by snatching her hair and except this he did not see anything else there. In these circumstances, learned counsel for the accused/appellant has submitted that as per the statement of PW-3 Bachi Ram-husband of the victim Smt. Vimla Devi who has stated that when he reached at the place of occurrence after some time the accused had gone from there and her wife was taking bath at that time. All this factual position of evidence adduced by the prosecution, indicates unnatural behaviour on the part of the victim Smt. 8 Vimla Devi. The conduct of the victim is unnatural which exerts grave impact on the prosecution case. The usual behaviour of the victim in the circumstances ought to have been that instead of taking bath she would have returned immediately to the village without loosing time for intimating her husband about the incident and for lodging report against the accused/ appellant. This conduct and behaviour of Smt. Vimla Devi exerts doubt on the prosecution story. Learned counsel for the accused/appellant has further submitted that the name of PW-4 Nirmal Kumar does not find figure in the First Information Report and even he has stated that he had not seen the incident of rape committed by the accused/ appellant. This fact also does not support the prosecution story and creates doubt on the prosecution case. The arguments advanced by the learned counsel for the accused/appellant on the basis of the evidence of PW-3 Bachi Ram and PW-4 Nirmal Kumar is convincing. As after commission of rape, instead of making noise Smt. Vimla Devi was continuously taking bath. Had the offence of rape would have been committed on her as alleged in the First Information Report she would have returned back immediately to her village for giving information to her husband or to the villagers for lodging a report to the Patwari concerned about the alleged incident of rape, which also creates doubt on the prosecution case. Learned counsel for the accused/appellant has further argued that although the name of PW-4 Nirmal Kumar is not mentioned in the First Information Report, but he has been examined as a prosecution witness in the Court below, which also creates doubt on the prosecution case. Even PW-4 Nirmal Kumar in his evidence has stated that he had not seen the accused/ appellant committing rape on Smt. Vimla Devi therefore his presence on the place of occurrence is doubtful. 17. Learned counsel for the accused/appellant has contended that now there remains only evidence with the 9 prosecution against the accused/ appellant is the evidence of PW-2 Smt. Vimla Devi, but her evidence does not inspire confidence. He has further argued that the evidence of Smt. Vimla Devi is not natural, believable and cogent. He has stated that Smt. Vimla Devi gave an application to the Sub Divisional Magistrate, Lohaghat on 02.04.1990. There falls nearest hospital at Barakot, as per the statement of Smt. Vimla Devi and thereafter at Lohaghat, but she was not got medically examined either at Barakot or Lohaghat. She came at Lohaghat when she moved application before the Sub Divisional Magistrate, Lohaghat on 02.04.1990 but she did not put herself for medical examination in case, rape was committed on her. Again she had gone to the office of the District Magistrate, Pithoragarh on 04.04.1990 where there is district hospital, but she did not presented herself before any Medical Officer for her medical examination. Had the rape would have committed on her, she would have presented herself to any lady doctor for her medical examination at Pithoragarh also. Thus, the behaviour and conduct of the prosecutrix also creates doubt on the prosecution case. Even otherwise when she was medically examined by the Medical Officer PW-1 Dr. Suresh Chandra Upreti at Govt. Ayurvedic Hospital, Karnkarayat on 08.04.1990 the doctor did not opined about the rape and when the definite opinion was not given by the doctor, she did not presented herself before any lady Medical Officer. Thus, the evidence of PW-2 Smt. Vimla Devi is not corroborated by any medical evidence or by any other circumstantial evidence, which also creates doubt in the evidence of Smt. Vimla Devi and on the prosecution story. Learned counsel for the accused/appellant has further argued that Keshavi Devi, was the witness of the incident who has possibly seen the incident, but she was also not examined by the prosecution, which creates doubt on the prosecution story. Though in the case of rape, if the statement of the victim solely inspire confidence, there is no requirement of other creditable 10 evidence, but in the circumstances above said, the evidence of the victim Smt. Vimla Devi does not inspire confidence. Witness of the incident was Keshavi Devi who was an important witness, but by not examining such an important witness, also creates doubt on the prosecution story. 18. From the evidence discussed above and in the facts and circumstances, the prosecution has failed to prove its case against the accused/appellant beyond reasonable doubt and the accused/appellant is liable to the acquitted. The learned Sessions Judge has erred in convicting the accused/appellant for the offence punishable u/s 376, 323 I.P.C. and sentencing him as mentioned above. 19. For the reasons recorded above, the appeal preferred by the accused/appellant Diwan Ram deserves to be allowed and the judgment and order dated 21.02.1991 passed by learned Sessions Judge, Pithoragarh in Sessions Trial no. 17 of 1990 State vs. Diwan Ram liable to be set-aside. 20. Accordingly, the appeal is allowed. The judgment and order dated 21.02.1991 passed by learned Sessions Judge, Pithoragarh is hereby set-aside. The accused/appellant Diwan Ram is acquitted from the charge levelled against him. The accused is on bail. He needs not to surrender, his sureties are discharged. 21. Let a copy of this judgment, alongwith the record of the Court below be sent back to the Trial Court. NCM: (Dharam Veer, J.) 25.06.2008