HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1245 of 2001 (Old no. 578 of 1990) Pitamber Dutt S/o Fateh Ram, Resident of village Jonk, Patti Talla Udaipur, Police Station-Laxman Jhula, District Pauri Garhwal. ------- Accused/appellant. Versus The State. ------- Respondent Sri Rahul Consul, holding brief of Sri Sudhanshu Dhulia, learned counsel for the appellant, Sri M.A. Khan, learned Brief Holder for the State. Dated: July 24, 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 16.03.1990 passed by the learned Sessions Judge, Pauri Garhwal in Sessions Trial No. 10 of 1989 State vs. Pitamber Dutt, whereby the learned Sessions Judge has convicted the accused/appellant for the offence punishable u/s 376 read with Section 511 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo 2 years’ R.I. 2. I have heard Sri Rahul Consul, holding brief of Sri Sudhanshu Dhulia, learned Senior Counsel for the appellant and Sri M.A. Khan, learned Brief Holder 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 28.07.1988 in the evening about 7:00 p.m. the appellant/accused Pitamber Dutt committed rape with Km. Pushpa at his own roof. It is averted in the First Information Report that Km. Pushpa had gone at the roof of the accused/appellant to sleep there 2 alongwith her mattress and bed sheet. After the incident took place, the matter was reported by Km. Pushpa to her mother- Smt. Uma Devi and Uma Devi had sent one Gopi Prasad to call her husband Darshan Lal from his shop. Then Darshan Lal came to his house and on the information received by him, he lodged the First Information Report in the Police Station Laxmanjhula on 30.07.1988 at 10:30 a.m. The First Information Report is Ext. Ka-1. On the basis of the FIR Ext. Ka-1, the Chik First Information Report was prepared by Constable Clerk SriPal Singh that Chik FIR is Ext. Ka-4. Necessary entries was made in the G.D., the carbon copy of the G.D. is Ext. Ka-5. The victim Km. Pushpa was medically examined by the Medical Officer at Combined Govt. Hospital, Kotdwar and the medical report Ext. Ka-2 and the supplementary medical report Ext. Ka-3 were prepared. Investigation of the crime was entrusted to PW-5 S.I. Janeshwar Singh, who during the course of investigation recorded the statements of the witnesses. The I.O. also recovered the clothes i.e. underwear (Kachhi) and Frock of the victim Km. Pushpa and prepared the recovery memo Ext. Ka- 6. On the pointing out of the victim he prepared the site-plan Ext. Ka- 7 of the place of occurrence. After completing investigation, he submitted charge sheet Ext. Ka-8 against the accused appellant u/s 376 I.P.C. on 17.09.1988. 4. Learned Chief Judicial Magistrate, Pauri Garhwal on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 20.02.1989 u/s 209 Cr.P.C. 5. Learned Sessions Judge, Pauri Garhwal after hearing the parties on 10.03.1989 framed the charge of offence punishable u/s 376 I.P.C. against the accused/appellant Pitamber Dutt. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 3 6. The prosecution, to prove its case, has examined PW-1 Km. Pushpa-the victim, PW-2 Darshan Lal-father of the victim and complainant of the case, PW-3 Bhagat Ram-before whom the extra judicial confession was made by the accused, PW-4 Dr. Smt. R. Chawla who has conducted medical examination of the victim and PW-5 S.I. Janeshwar Singh- Investigating Officer of the case. 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. The accused/appellant did not produce any oral and documentary evidence in his defence. However, Smt. Uma Devi was examined as Court Witness no.1. 8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge Pauri Garhwal vide his judgment and order dated 16.03.1990 has convicted the accused/appellant for the offence punishable u/s 376 read with Section 511 I.P.C. and sentenced him to undergo 2 years’ R.I. Aggrieved with the impugned judgment and order dated 16.03.1990, the present accused/appellant has come up in the instant Criminal Appeal. 9. Before further discussions, it is pertinent to mention the medical evidence available on the record. On 30.07.1988 at 10:00 p.m. the victim Km. Pushpa was medically examined by PW-4 Dr. Smt. R. Chawla, Medical Officer at Combined Govt. Hospital, Kotdwar. The injuries found on the person of the victim Km. Pushpa are reproduced hereunder:- Internal Examination:- i. Hymen intact but congested and tender. No fresh bleeding present. Her private parts vagina admittedly only one finger with difficulty. Veginal smear 4 prepared and sent for microscopic examination for evidence of sperm. The girl was referred for X-Ray examination of elbow and wrist joint for evidence of age; ii. Multiple scabbed abrasion in an area of 4cm. x 2cm. on part of left thigh 8cm. above left knee; iii. Scabbed abrasion in an area of 10cm. x 2cm. on inner side of right ankle and right foot; In the opinion of doctor the girl is above 16 years but below 18 years. No definite opinion regarding rape could be given. 10. The Pathologist of the Govt. Combined Hospital, Kotdwar has also submitted a report dated 01.08.1988 that no spermatozoa were seen. 11. Dr. Smt. R. Chawla was examined in the prosecution as prosecution witness no.4, who has stated that on 30.07.1988 she was posted at the Combined Govt. Hospital, Kotdwar as Medical Officer and on that day she conducted medical examination of Km. Pushpa and prepared medical report Ext. Ka-2 and the supplementary report Ext. Ka-3 and she found the injuries mentioned above, in para-9, on the person of the victim Km. Pushpa. In her cross-examination she has stated that in the vagina she did not found bleeding. It is also stated in the cross-examination that the abrasions found on the person of the victim were due to the friction in the rough surface and could be caused by a DANDA. 12. To prove its case, the prosecution has further examined PW-1 Km. Pushpa, who has stated that the house of the accused and her house are adjacent to each other. She usually went at the roof of the accused Pitamber Dutt for sleeping. She has stated that the accused Pitamber Dutt did bad work with her. She has further stated that the accused committed rape on 5 her, but on which date and time, she is not acquainted with. She has further stated that she had gone at the roof of the accused in the evening at 6:30-7:00 p.m. for sleep and the accused/appellant had committed bad work with her. At that time she had wore an underwear and Frock. She has further stated that blood came out from her vagina and her underwear and Frock were also bloodstained due to that bleeding. Thereafter, she came into her house and narrated the incident to her mother. Her mother sent Gopi to call her father from the shop. The Frock and underwear were taken by the police in their possession. When a sealed bundle was opened in the Court after seeing the clothes, she identified her underwear and Frock, which are Ext.-1 and 2 respectively. It is stated that she was medically examined by the Medical Officer. In para-5 of her cross-examination she has stated that on the date of incident the accused Pitamber Dutt was living alongwith his son, daughter-in-law and four children and all these members were at the house at the time of the alleged incident. On these days the accused Pitamber Dutt used to sleep on his roof alongwith his four grand children. Usually the accused had come on the roof at 8:00-9:00 p.m. with his grand children for sleep. On the date of incident she has also taken her mattress and bed sheet on the roof. In para-6 of her cross-examination she has further stated that when she came from the roof after the said incident, the wife of the accused was cooking food in her house, but she came into her house alongwith her mattress and bed sheet. In her cross-examination she has further stated that she was beaten by her mother as to why she had gone on the roof of the accused for sleeping. It is further stated in the cross-examination that the injuries received on her thigh were caused due to friction on the roof. 13. PW-2 is the witness Darshan Lal-father of the victim, who has lodged the First Information Report at the Police 6 Station on the information gathered by him from Gopi and his wife Uma Devi. 14. PW-3 is the witness Bhagat Ram, who has stated that the accused has confessed his guilt before him and in the presence of complainant Darshan Lal. 15. PW-5 is the Investigating Officer S.I. Janeshwar Singh, who has stated that on 30.07.1988 he was posted at Police Station Laxmanjhula. On the basis of the written report Ext. Ka-1 lodged by Darshan Lal, the Chik report Ext. Ka-4 was prepared by the Head Constable SriPal Singh and an entry was made in the G.D. Ext. Ka-5. Investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses and also prepared a FARD Ext. Ka-6 of the recovery of underwear and Frock. During investigation he also prepared the site-plan Ext. Ka-7 on the pointing out of victim Km. Pushpa. After completing investigation, he submitted charge sheet Ext. Ka-8 16. 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 due to the enmity with Uma Devi-stepmother of the victim Km. Pushpa. The accused/appellant did not produce any oral and documentary evidence in his defence. However, Smt. Uma Devi was examined as Court Witness no.1 who in her statement has stated that on the basis of the information received through Km. Pushpa, she informed her husband. Thus, this witness is a formal witness. 17. Learned counsel for the accused/appellant has argued that there is only evidence against the accused/appellant is the evidence of Km. Pushpa and rest of the witnesses i.e. PW-2 7 Darshan Lal, PW-3 Bhagat Ram and CW-1 Smt. Uma Devi are the formal witnesses. Moreover the statement of Bhagat Ram is not reliable before whom the accused has confessed his guilt. But the accused/ appellant cannot confess the guilt before the complainant Darshan Lal (father of the victim) who was going to implicate him in the present case. This circumstance that the accused/ appellant has confessed his guilt before Bhagat Ram in the house of the complainant itself puts doubt in the prosecution story and for the reason this part of the statement of Bhagat Ram and the complainant Darshal Lal does not inspire confidence. 18. Sri Rahul Cousul, learned counsel for the accused/ appellant has submitted that the evidence of PW-1 Km. Pushpa does not inspire confidence. In this regard he has submitted that the evidence of Km. Pushpa is not corroborated by the medical evidence and due to this reason the evidence of Km. Pushpa is not reliable and believable. From perusal of the medical evidence on the record and evidence of PW-4 Dr. Smt. R. Chawla, Medical Officer, in which she has opined that no definite opinion about the rape can be given and the hymen was found intact, no fresh bleeding was present, private parts of vagina admitted only one finger with difficulty and no spermatozoa were found in the vaginal smear, all the opinion show that even attempt of the rape was not committed and as the victim has stated that blood was came out from her vagina at the time the rape was committed, but no blood was found on her underwear or her frock. In her statement PW-4 Dr. Smt. R. Chawla, M.O. has stated that no bleeding was found in the vagina, which clearly proved that no rape was committed and even no attempt of rape was committed on the girl. From the evidence discussed above and after examining all the evidence and hearing the counsel of both the parties, it reveals that the evidence of Km. Pushpa does not inspire confidence due to the following reasons. :- 8 i. The victim Km. Pushpa has stated in her evidence that the accuse has committed rape on her while in the medical evidence PW-4 Dr. Smt. R. Chawala has stated that no definite opinion about the rape can be given. Even there was no spermatozoa was seen by the Pathologist in the vaginal smear sent for examination; ii. The age of the victim is more than 16 years and as per the opinion of the doctor the age of the victim was above 16 years but below 18 years’. Learned counsel for the accused/ appellant has argued that two years’ margin in the medical opinion may be given in coming into the conclusion of the age. Thus after giving the benefit of 2 years in the upper age, the age of the victim would have been more than 18 years thus she was major at the time of the said incident. iii. From the facts and circumstances of the case it reveals that the victim herself had gone at the roof of the accused/ appellant for sleep. The accused also used to sleep on the roof alongwith his grand children. The accused was rendering 62 years’ of his age at the time of the said incident, which also creates doubt on the prosecution story that the accused who was about the age of 62 years’ and used to sleep at his roof alongwith his grand children, has committed such an offence in the presence of entire family, as per the statement of the victim the accused was living with his son, daughter-in-law and grand children, who were also present at the time of the alleged incident in the house. Thus, the entire events create doubt in the prosecution story. iv. The evidence of Km. Pushpa PW-1 further does not inspire confidence as she has stated that she had gone at the roof of the accused for sleeping taking with her a mattress and bed sheet and the accused has 9 committed rape on her on the mattress, but no blood was found in the mattress or bet sheet also, hence her evidence creates doubt in the prosecution story. As she has further stated that after the incident took place, she came into her house taking her mattress and bed sheet and at that time the wife of the accused was cooking food inside her house, but without informing the wife of the accused, she came into her house and narrated the incident to her mother. All her deposition made by the prosecutrix does not inspire confidence at any level which is not reliable and believable. 19. Learned counsel for the accused appellant has submitted that the only evidence against the appellant is the solitary evidence of PW.1 Km. Pushpa and on the basis of the evidence discussed above, it does not inspire any confidence. In support of this argument, he has cited a judgment reported in 2003 (1) Supreme Court Cases, 465 “Joseph Vs. State of Kerala”. He has relied upon para 13 of this judgment 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 10 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.” 20. Learned counsel for the appellant further submitted that the evidence of the solitary witness should be accepted with caution. He further submitted that it is permissible 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. 21. In the present case; the incident was said to have been taken place on 28.07.1988 at about 7:00 p.m. while the FIR of the case was lodged on 30.07.1988 at 10:30 a.m., the distance of the police station from the place of occurrence is ½ Kms, but no explanation has been given for the delay in lodging the FIR, which also proves the prosecution story doubtful and concocted. The delay in lodging the F.I.R. has neither been explained in the F.I.R. nor in the evidence produced by the prosecution and that is fatal for the prosecution case. In support of this submission, learned counsel for the appellant cited 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. Reliance was placed on para-4 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.” 11 22. From the facts and circumstances of the case, it is established that the distance of the Police Station from the place of occurrence is about ½ km. and the incident said to have taken place on 28.07.1988 at about 7:00 p.m. while the First Information Report has been lodged on 30.07.1988 at 10:30 a.m. i.e. after about 39 hrs. of the said incident, but the delay in lodging the First Information Report has also not been explained, which is also doubtful. 23. From the evidence discussed above and in the facts and circumstances of the case and on the basis of the judgment of the Apex Court (supra) the prosecution has failed to prove its case against the accused/appellant beyond reasonable doubt. The learned Sessions Judge has erred in convicting the accused/appellant for the offence punishable u/s 376 read with Section 511 I.P.C. and sentencing him as mentioned above. 24. For the reasons recorded above, the appeal preferred by the accused/appellant Pitamber Dutt deserves to be allowed and the judgment and order dated 16.03.1990 passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial no. 10 of 1989 State vs. Pitamber Dutt liable to be set-aside and on the basis of the discussions above the accused/appellant is entitled to be acquitted. 25. Accordingly, the appeal is allowed. The judgment and order dated 16.03.1990 passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial no. 10/1989, is hereby set- aside. The accused/appellant Pitamber Dutt is acquitted for the charges levelled against him. The accused is on bail. He needs not to surrender, his sureties are discharged. 12 26. Let a copy of this judgment, alongwith the record of the Court below be sent back to the Trial Court. (Dharam Veer, J.) 24.07.2008 NCM: