IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.89 OF 2004 Satya Vir S/o Harmal R/o Village Nagla Cheena P.S. Manglaur, District Haridwar ……… Appellant Versus The State ……… Respondent Dated: September 17, 2009 Sri Sachin Pawar, Adv. i/b Mr. H.C. Pathak, Adv. for the appellant Sri Nandan Arya, learned AGA 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 17.3.2004 passed by First FTC/Addl. Sessions Judge, Roorkee, District Haridwar in Sessions Trial No.400 of 2002, State Vs. Satvir, whereby the learned First FTC/Addl. Sessions Judge has convicted the appellant/accused u/s 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years’ rigorous imprisonment with fine of Rs.500/- and in case of default, six months’ additional simple imprisonment was awarded. However, the appellant-accused was acquitted for the offence punishable u/s 506 IPC. 2. I have heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that complainant Kanta Devi (P.W.3) lodged an FIR stating therein that on 19.9.2002 at about 11:00 A.M., she had gone to answer the call of nature in the sugarcane field nearby her house. As soon as she answered the call of nature, appellant-accused caught hold of her from her back and put a Tamancha on her temporal region, dragged her inside the field while beating and there he committed bad work with her forcibly. The appellant- accused also threatened the complainant that if she would disclose this incident to anyone then she along with her family members would be killed by the said Tamancha and thereafter he ran away from there. On the noise raised by her, Kusum W/o Ramesh reached on the place of the occurrence who also saw and identified the appellant-accused while running. At that time her husband was not at home. On her husband’s arrival at the house in the night, she disclosed the entire incident to him. With the same averments, the FIR Ex.Ka-9 was lodged by P.W.3 Kanta Devi on 20.9.2002 at 12:30 P.M. On the basis of the FIR (Ex.Ka- 9), Constable Clerk Satish Chand prepared the Chik FIR of the case, i.e. Ex.Ka-7. He also made entry in the G.D., carbon copy of which is Ex.Ka-8. The investigation of this case was entrusted to P.W.5 S.I. Data Ram. The I.O. also took in his possession the Salwar of victim worn by her at the time of incident, having spots of sperm, and prepared the Fard, i.e. Ex.Ka-1. Victim Smt. Kanta was medically been examined on 20.9.2002 at 2:00 P.M. by P.W.4 Dr. Neelam Kandari and prepared the medical report Ex.Ka-2. The same medical officer also prepared the 3 supplementary report of the victim on 9.10.2002, i.e. Ex.Ka-3. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-5. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/accused in the court, i.e. Ex.Ka-6. 4. After receiving the charge sheet, learned Addl. CJM, Roorkee, Haridwar committed the case to the court of Sessions on 10.12.2002 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. The case was initially transferred to Assistant Sessions Judge and later on to the Additional Sessions Judge by Sessions Judge for disposal according to law. 5. Learned Assistant Sessions Judge/Second FTC, Roorkee, Distt. Haridwar has framed the charges against the appellant/accused u/s 376/506/323 IPC. The charges were read over and explained to appellant/ accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Sanjay, husband of victim; P.W.2 Atar Singh, who proved the recovery Fard Ex.Ka-1; P.W.3 Smt. Kanta Devi, victim; P.W.4 Dr. Neelam Kandari, who medically examined the victim and P.W.5 S.I. Data Ram, I.O. of the case. 4 7. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated due to enmity. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned First FTC/Addl. Sessions Judge, Roorkee, Distt. Haridwar vide judgment and order dated 17.3.2004 convicted and sentenced the appellant /accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the medical report (Ex.Ka-2) of the victim who was medically been examined on 20.9.2002 at 2:00 P.M. by P.W.4 Dr. Neelam Kandari. The medical officer on the examination of victim found as under: - “General Examination Height Four and half feet Teeth Upper Jaw-14 Lower Jaw-14 Axillary hairs present Pubic hairs present Breasts well developed External Examination 1. Contusion 5 cm x 1.5 cm on right side of antero-lateral aspect of thigh 1.0 cm below the anterior iliac spine 5 2. Contusion 6.00 x 2.00 cm on antero-lateral aspect of right thigh 6.00 cm below anterior superior iliac spine 3. Contusion 4.00 cm x 1.5 cm in the outer aspect of right thigh 2.5 cm below the injury no.2 4. Contusion 6 cm x 6 cm, having shape mentioned in the report, on the antero-lateral aspect of left thigh 3 cm below the anterior superior spine. 5. Contusion 2.5 cm x 1.5 cm on the left knee Internal Examination No internal injury found. Patient has produced one female child one year back. So vagina is loose, admits fingers easily. Vaginal smear taken and slide made for pathological examination. In hymen old healed tear present. Opinion- All injuries are caused by hard blunt object, simple in nature and duration of injury is between one to two days. In hymen old healed tear present. Vagina presents looseness and admits two fingers easily. Slide has been sent for examination of spermatozoa. 10. Thereafter, the same medical officer also prepared the supplementary report (Ex.Ka-3) of victim and opined as under: - “Opinion-No spermatozoa found dead or alive. Rest of the report is same as given in previous report.” 11. To prove the above injury reports, the prosecution has examined P.W.4 Dr. Neelam Kandari who has proved the medical report Ex.Ka-2 and supplementary medical report Ex.Ka-3 prepared by her. 12. To further prove its case, the prosecution got examined P.W.1 Sanjay who stated that on 19.9.2002 6 he had gone out for labour work. At 7:30 P.M., when he came back, he was informed by his wife Kanta Devi that on that day at 11:00 A.M., when she had gone for natural call, at that the time the appellant-accused caught hold of her from her back and put a Tamancha on her temporal region and directed her to come inside the sugarcane field. On her resistance, the appellant- accused dragged her inside the field while beating and committed bad work with her. On the noise raised by her, Kusum W/o Ramesh came there who saw the appellant-accused running. Since it was late in the night, therefore, on the next day he along with his wife Kanta and Ramesh went to lodge the report and the case was registered. The police took the Salwar of his wife into possession which she was wearing at the time of incident and prepared the Fard, i.e. Ex.Ka-1. He also identified the said Salwar in the court i.e. Ex.1 and the piece of cloth in which it was sealed, i.e. Ex.2. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement, which may create any doubt in his statement. The statement of this witness is reliable and believable. 13. P.W.2 is Atar Singh who stated that on 20.9.2002 he had come at P.S. Manglore along with Kanta, Sanjay and others. The police took the Salwar of Kanta into possession which she worn at the time of incident and prepared the Fard, i.e. Ex.Ka-1. He also identified the said Salwar in the court, i.e. Ex.1. 14. P.W.3 is Kanta Devi, victim of the incident, who stated that on 19.9.2002 at about 10-11 A.M., she 7 had gone to answer the call of nature. Meanwhile, appellant-accused came there and caught hold of her from her back, put a Tamancha on her temporal region and directed her to come inside the sugarcane field. When she resisted, the appellant-accused dragged her while beating her inside the field where he committed bad work with her. On the noise raised by her, Kusum also reached there who saw the appellant-accused running. Before running, the appellant-accused threatened her that if she would disclose this incident to anyone then she would be killed. Her husband had gone for labour work at that time. At about 7:30 P.M., her husband came back, then she disclosed the entire incident to her husband. Since it was late in the night and there was no mode of transportation, hence they went to lodge the report on the next day. On the next day morning, she along with her husband and father in law lodged the report from where she was sent for medical examination at Govt. Hospital. She had given the Salwar, worn by her at the time of incident, to the police. She further stated that as a result of her dragging by the appellant-accused, she received injuries on her thighs, back and wrists as a result of friction. She further stated that appellant-accused committed rape with her. She also proved the FIR Ex.Ka-9 lodged by her in the police station. This witness was also cross-examined at length by the defence counsel but she could not be shaken in her testimony. The statement of this witness is also reliable and believable. 8 15. P.W.5 is S.I. Data Ram who stated that on 20.9.2002 he was entrusted with the investigation of this case. He inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-5. During investigation, he recorded the statements of witnesses and on completion of investigation, he filed the charge sheet against the appellant-accused, i.e. Ex.Ka-6. Chik FIR of this case was prepared by Head Constable Satish Chandra, i.e. Ex.Ka-7. The entry in this regard was also made by the same constable clerk Satish Chandra which was prepared in the same process, i.e. Ex.Ka.8. 16. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated due to enmity. 17. Learned counsel for the appellant-accused argued that as per the above said evidence, the case against the appellant-accused has not been proved beyond reasonable doubt. I do not find any force in this argument because P.W.3 Kanta Devi, victim, has deposed her evidence that on 19.9.2002 at about 10-` 11 A.M., she had gone to answer the call of nature. Meanwhile, the appellant-accused came there and caught hold of her from her back, put a Tamancha on her temporal region and directed her to come inside the sugarcane field. When she resisted, the appellant- accused dragged her while beating her inside the field where he committed bad work with her. Before 9 running, the appellant-accused threatened her that if she would disclose this incident to anyone then she would be killed. Her husband had gone for labour work at that time. At about 7:30 P.M., her husband came back, then she disclosed the entire incident to her husband. Since it was late in the night and there was no mode of transportation, hence they went to lodge the report on the next day. On the next day morning, she along with her husband and father in law lodged the report from where she was sent for medical examination at Govt. Hospital. She had given the Salwar worn by her at the time of incident to the police. She further stated that due to dragging by the appellant-accused, she received injuries on her thighs, back and wrists as a result of friction. She further stated that appellant-accused committed rape with her. She also proved the FIR Ex.Ka-9 lodged by her in the police station. The evidence of this witness is reliable, natural and believable and the same gets full corroboration from the oral evidence of P.W.1 Sanjay, husband of victim as well as from the medical evidence of P.W.4 Dr. Neelam Kandari and from the medical report Ex.Ka-2 and supplementary medical report Ex.Ka-3. Thus, the prosecution has been successful in proving its case against the appellant-accused beyond reasonable doubt for the offence punishable u/s 376 IPC and I concur the view taken by the trial court in convicting and sentencing the appellant-accused as discussed above. 18. Learned AGA for the State has produced a copy of the letter dated 3.12.2008 written by 10 Superintendent, Sub-Jail, Roorkee on the basis of which he submitted that the appellant-accused Satvir has been released from jail on 26.6.2008 after serving out his sentence in the present case and he also deposited the fine in the trial court, hence he submitted that the instant appeal has been rendered infructuous. 19. In view of the above-said discussion, the appeal is devoid of merits and the same is dismissed. The judgment and order dated 17.3.2004 passed by First FTC/Addl. Sessions Judge, Roorkee, Distt. Haridwar in Sessions Trial No.400 of 2002, State Vs. Satvir, is affirmed. However, it is reiterated that the appellant-accused has been released from the jail after serving out the sentence as awarded against him. (Dharam Veer, J.) 17.09.2009 Rajeev Dang