HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 492 of 2001 (Old no. 1873 of 1990) Kishan Lal S/o Ranga Lal, Resident of village Bajang Nepal, Police Station-Kotwali, Dehradun, At present 35, Mahant Road, House of Morari Lal, Dehradun. ------- Accused/appellant. Versus The State. ------- Respondent Sri I.P. Kohli, learned Amicus-Curiae for the appellant. Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: July 4, 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 04.09.1990 passed by the Sessions Judge, Dehradun in Sessions Trial No. 124/1989 State vs. Kishan Lal and another whereby the learned Sessions Judge has convicted the accused/appellant for the offence punishable u/s 376, 323, 452 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo 7 years’ R.I., 3 month’s R.I. and 3 years’ R.I. under Section 376, 323, 452 I.P.C. respectively. It was further directed that all the sentences shall run concurrently. By the same judgment and order the co-accused Ram Bahadur was acquitted from the charges levelled against him. 2. I have heard Sri I.P. Kohli, learned Amicus-Curiae 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 14.07.1989 at 7:00 p.m. complainant Gagan Bahadur has lodged an oral report in the Reporting Out Post- Basant Vihar, Police Station Kotwali, Dehradun with the averments that in the morning of 14.07.1989 at 8:00 when he had gone to fetch water from a Tap, there he saw his Napalies brothers gathered there and on that place he came to know that Smt. Maya Devi was beaten badly with LATHEE & DANDAS, after entering her house in the night. It is averted that he also saw the injuries on her mouth and head. Blood was oozing out from her injuries. She was incapable even to talk. The injured Smt. Maya Devi was taken to Doon Hospital for treatment. On the basis of the oral report the Chik First Information Report Ext. Ka-7 was prepared by PW-4 Head Moharir Rajveer Singh. An entry was made in the General Diary, a copy of which is Ext. Ka-8. A case crime no. 65/1989 u/s 452, 308 I.P.C. was registered against unknown person. Lateron on the same day, Section 376 I.P.C. was added vide G.D. entry No. 39 at 11:30 p.m., copy of the G.D. is Ext. Ka-9. The victim Smt. Maya Devi was medically examined by PW-5 Dr. A.P. Mamgain, Medical Officer on 14.07.1989 at 9:50 a.m. at Doon Hospital, Dehradun who prepared medical report Ext. Ka-10. Smt. Maya Devi was again sent for medical examination on the next day i.e. on 15.07.1989 where she was medical examined by PW-2 Lady Doctor Smt. Asha Mamgain, Medical Officer Women Hospital, Dehradun who prepared medical report Ext. Ka-1 in this regard. On 15.07.1989 a Pathology Report was prepared by the Medical Officer, Govt. Women Hospital, Dehradun, that report is Ext. Ka-3. X-Ray report Ext. Ka- 4 was prepared by Dr. B.C. Ramola. A supplementary report was prepared, a copy of which is Ext. Ka-2 on the record. Thereafter the co-accused Ram Bahadur was put for the test identification; the memo of test identification is Ext. Ka-6 on the record. Investigation of the case was entrusted to PW-7 S.I. J.P. Juyal who during the course of investigation prepared site-plan Ext. Ka-11. He also recorded the statement of the witnesses and after completing investigation, he submitted charge sheet Ext. Ka-12 against the accused/appellant and against co-accused Ram Bahadur on 14.09.1989. 4. Learned Chief Judicial Magistrate, Dehradun 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 27.11.1989 u/s 209 Cr.P.C. 5. Learned Sessions Judge, Dehradun after hearing the parties on 17.01.1990 framed the charge of offence punishable u/s 452,308,376 I.P.C. against the accused/appellant Kishan Lal and against the co-accused Ram Bahadur. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 6. The prosecution, to prove its case, has examined PW-1 Smt. Maya Devi-the victim, PW-2 Dr. Asha Mamgain-who has medically examined the victim and prepared medical report, PW-3 Sultan Singh Chauhan- the than Dy. Collector, PW-4 Head Constable Rajveer Singh, PW-5 Dr. A.P. Mamgain- who examined the victim firstly on 14.07.1989, PW-6 Ran Bahadur and PW-7 S.I. J.P. Juyal-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 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 Dehradun vide his judgment and order dated 04.09.1990 has convicted the accused/appellant for the offence punishable u/s 376, 323, 452 of the I.P.C. and sentenced him to undergo 7 years’ R.I., 3 month’s R.I. and 3 years’ R.I. under Section 376, 323, 452 I.P.C. respectively. It was further directed that all the sentences shall run concurrently. By the same judgment and order the co-accused Ram Bahadur was acquitted from the charges levelled against him. Aggrieved with the impugned judgment and order dated 04.09.1990, 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 14.07.1989 at 9:50 a.m. the victim Smt. Maya Devi was medically examined by PW-5 A.P. Mamgain, Medical Officer, Doon Hospital, Dehradun. The injuries found on the person of the victim Maya Devi are reproduced hereunder:- 1. Lacerated wound 1.5cm. x 0.5cm. x skin deep, left side of the forehead, just above left eyebrow, 2. Lacerated wound 3cm. x 0.5cm. x through and through middle of lower lip, 3. Contusion 2cm. x 2cm. inner aspect of upper lip middle, 4. Abraded contusion 4cm. x 2cm. x left side face 3cm. below left eye, 5. Lacerated wound 0.5cm. 0.25cm. x bone deep left side nose middle, 6. Abrasion 0.5cm. x 0.25cm. outer aspect of upper lip left side just below left mouth, 7. Bleeding from right nostril present, 8. Multiple abraded contusion in an area 10cm. x 6cm. front of neck, 9. Abrasion 4cm. x 0.25cm. middle of breast, just below sternal knose, 10. Unable to speak, fully conscious, responding to verbal instructions. The doctor has opined that the injuries nos. 2,5,7 & 8 was kept under observation. X-Ray of nose was advised and referred to E.N.T. Surgeon. X-Ray of breast was advised. The patient was admitted under observation. It was further opined that all the injuries could have been caused by any blunt object and duration was about ½ day. It was further opined that the said injuries could have been caused on the intervening night of 13/14.07.1989 at 3:00 a.m. by criminal assaulting and by beating with DANDA. 10. The victim Smt. Maya Devi was further examined on 15.07.1989 at 10:10 a.m. at Women Hospital, Dehradun by PW-2 Dr. Aasha Mamgain who in internal examination found that vagina admits 2 fingers easily, Hymen torn, old tear present, Ut. N.S. Advice of X-Ray of wrist, knee, ankle and elbow joint for determination of age. Vaginal smear sent for its pathological examination for detecting of presence of sperms. PW-2 Dr. Aasha Mamgain on 18.07.1989 on the basis of X-Ray report and Pathology Report has prepared supplementary report ext. Ka-2 and found as follows:- X-Ray Report:- All the epiphysis around elbow, knee, wrist and ankle joint are fused and covered with their respective shafts, Pathology Report:- Vaginal smear is negative for G.C. & Spermatozoa. On the basis of X-Ray Report and Pathology report, the doctor PW-2 Asha Mamgain reached to the conclusion that- No definite opinion about the rape can be given. The age of the lady was above 19 years’. 11. To prove its case, the prosecution, first of all, has examined PW-1 Smt. Maya Devi-the victim, who has stated that name of her husband was Jang Bahadur, who had deserted her. She was living in the rented house of Heera Lal at Kanwali Road. On the day of incident about 5 months’ before at about 4:00 a.m. when she was sleeping, then the accused/appellant Kishan Bahadur and co-accused Ram Bahadur had entered inside her room and both of they gave beating to her. They also torn her clothes i.e. BLOUSE, PETIKOT AND SAREE and both of them committed rape on her. She has further stated that the accused/appellant and other accused did not used any weapon while gave beating to her. She has further stated that she did not permit the accused persons to do any bad work with her. She has stated that the accused Kishan Bahadur was already known to her and she identified the co-accused Ram Bahadur through his face cut. It is stated that in the test identification parade held in the jail, she identified the accused Ram Bahadur. She identified the accused Ram Bahadur in the Court also. It is further stated that on the fateful night one Gorkha boy, aged about 13-14 years, was also sleeping with her. It is further stated that Gagan Bahadur is known to her. She was not undergone through any treatment and she was not medically examined in the hospital. Her X-Ray was also not conducted. It is further deposed that she was admitted in the hospital then medicine were given to her, but no medical examination was conducted. The Police personnel took her clothes in their possession. 12. PW-2 is Dr. Asha Mamgain, who has stated that on 15.07.1989 she was posted as Medical Officer, Women Hospital, Dehradun. On that day Smt. Maya Devi was medically examined by her and found the facts mentioned in para-10 as above. She prepared medical report Ext. Ka-1 in this regard. It is further stated that on 18.07.1989 on the basis of X-Ray report, she prepared supplementary report Ext. Ka-2. 13. PW-3 is Dy. Collector Sultan Singh Chauhan, who has stated that on 05.09.1989 he was posted as Dy. Collector at Dehradun. On 05.09.1989 in District Jail, Dehradun, test identification of the accused Ram Bahadur was conducted and in the third round of test identification, the prosecutrix had rightly identified the accused Ram Bahadur. Identification memo Ext. Ka-6 was prepared in this regard. 14. PW-4 is Head Constable Rajveer Singh, who has stated that on 14.07.1989 he remained posted as such at R.O.P., Basant Vihar, P.S. Kotwali, Dehradun. On that day at 7:00 p.m. Gagan Bahadur lodged an oral report in the R.O.P. and on his dictation, he prepared the Chik F.I.R. Ext. Ka-7. Entry in the G.D. was made, the copy of the G.D. is Ext. Ka-8. On the same day Section 376 I.P.C. was also added and entry in the G.D. was made at Rapat no. 39, at 11:30 p.m., a copy of G.D. is Ext. Ka-9. 15. PW-5 is Dr. A.P. Mamgain, Medical Officer Doon Hospital, who has stated that on 14.07.1989, he was posted as such and on that day at 9:50 a.m. he examined Smt. Maya Devi and found the injuries as mentioned in para-9 of the above. He has further stated that the injuries were caused by some blunt object. He filed copy of the injury report Ext. Ka-10 and proved it. It is opined that the injuries can be caused by DANDA also. 16. PW-6 is Ran Bahadur, who does not support the prosecution case and declared hostile. 17. PW-7 is S.I. J.P. Juyal, Investigating Officer of the case, who has stated that on 14.07.1989 he was posted as in-charge R.O.P., Basant Vihar. He initiated investigating the matter from 14.07.1989. During the course of investigation, he recorded statement of the witnesses. On the pointing out of the complainant Gagan Bahadur he after making spot inspection, prepared the site-plan Ext. Ka-11. The accused Ram Bahadur was arrested by him on 22.07.1989 and was kept BAPARDA. The accused Kishan Lal was also arrested on 22.07.1989, before the arrest of accused Ram Bahadur and he was also sent to jail BAPARDA. Initially the crime was registered u/s 452/308 I.P.C., lateron after recording statement of Smt. Maya Devi, another Section 376 I.P.C. was added and entry was made in the General Diary, a copy of which is Ext. Ka-9. After completion of investigation, he submitted charge sheet Ext. Ka-12 against the accused persons. 18. 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. The accused/appellant did not produce any oral or documentary evidence in his defence. 19. Learned Amicus-Curiae Sri I.P. Kohli, has argued that merely evidence of PW-1 Smt. Maya Devi is against the accused/ appellant which also does not inspire confidence and her evidence is not reliable and cogent. He has stated that except the evidence of Smt. Maya Devi, evidence of other witnesses i.e. PW-2 Dr. Asha Mamgain, Medical Officer who has prepared the medical report of the victim, PW-3 Dy. Collector Sultan Singh Chauhan- who conducted the test identification of the accused Ram Bahadur and P.W.4 Head Constable Rajbir Singh, who has prepared the Chik F.I.R. and entered the case in the G.D., is of formal nature. PW-5 Dr. A.P. Mamgai, who has also medically examined the victim on 14.07.1989 and PW-6 Ran Bahadur who was witnesses of the fact, have not supported the prosecution case. Even the PW-6 Ran Bahadur has been declared hostile. On the basis of the above evidence, learned Amicus-Curiae has submitted that there remains only evidence with the prosecution, is the evidence of PW-1 Smt. Maya Devi which does not inspire confidence and creates a doubt in the prosecution case. 20. 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 Smt. Maya Devi does not inspire confidence due to the following reasons. :- 1. Smt. Maya Devi, in her evidence, has stated that the appellant-accused Kishan Lal and the other co- accused Ram Bahadur had not beaten her with any weapon. P.W.5 Dr. A.P. Mamgai has stated in his examination-in-chief that he has examined the victim Smt. Maya Devi on 14.07.1989 at 9:50 A.M. and all the injuries caused to the victim were caused by blunt object, thus it creates doubt in the evidence of Smt. Maya Devi. 2. As Smt. Maya Devi has stated in her examination- in-chief that the appellant-accused has not committed any bad work with her but later on, she has stated that appellant-accused and the co- accused committed rape with her but P.W.2 Medical Officer Dr. Asha Mamgai has opined that no definite opining about the rape can be given and in the supplementary report she has also stated that vaginal smear is negative for G.C. & Spermatozoa, which creates a doubt in the statement of prosecutrix. 3. In the supplementary medical report Ext. Ka-2 P.W.2 Dr. Aasha Mamgai has opined that the victim was above 19 years’ of age but the victim while giving evidence in the Trial Court has stated her age as 35 years’, which is also doubtful. The identity of the victim whether she was the same lady who had examined by the medical officer has come in the Court or not? 21. Due to the reasons mentioned above, the evidence of P.W.1 Maya Devi does not inspire confidence which is not reliable and believable. Learned Amicus-Curiae has further argued that Gagan Bahadur, who has lodged the F.I.R. was well known to the appellant-accused as also to the victim but the accused-appellant was not named in the F.I.R. and even the F.I.R. is delayed one, as the F.I.R. is lodged by Gagan Bahadur on 14.07.1989 at 7:00 P.M. and the distance of the place of occurrence from Police Chowki is about 2 kms. and victim was examined at Doon Hospital Dehradun on 14.07.1989 at 9:50 a.m. This fact has come in the knowledge of complainant Gagan Bahadur at about 8:00 a.m. but the F.I.R. is not lodged up to the 7:00 p.m. on the same day, which also creates a doubt in the prosecution case and the delay in lodging the F.I.R. has not been explained. 22. Learned counsel for the accused/appellant has further argued that, as appellant-accused Kishan Lal was not named in the F.I.R. and he along with co-accused Ram Bahadur were arrested by the police on the same day on 22.07.1989 and both were kept BAPARDA and sent to the jail BAPARDA. But the identification parade of the appellant-accused was not held as required by the law while the identification parade of the co- accused Ram Bahadur was held and he was identified by P.W.1 victim Smt. Maya Devi in the jail before P.W.4 Dy. Collector and the identification memo was also prepared, which is Ext. Ka-6. It is argued that on the same set of evidence co-accused Ram Bahadur was acquitted by the Trial Court and appellant- accused Kishan Lal was convicted. On the basis of the above circumstances he has submitted that the accused/appellant is also entitled for the benefit of doubt. In this regard, he has cited a judgment reported in 2007 AIR SCW, 5740 Deepak Rajak Vs. State of West Bengal and relied on paras- 5, 6 & 7 of this judgment. 5. “The position in law as to what happens in case of acquittal of similarly placed co-accused on the same set of facts and on similar accusations has been considered by this Court in several cases”. 6. “A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present case, after surrender, the benefit of acquittal in the case of co-accused on similar accusations can be extended. 7. “The appeal is allowed and conviction and sentence as recorded by the trial court and upheld by the High Curt is set aside”. 23. From the evidence discussed above it is apparent that the appellant-accused Kishal Lal and the co-accused Ram Bahadur were sent to jail BAPARDA by the Investigating Officer for their test identification. The identification parade of the co-accused Ram Bahadur was held in the District Jail Dehradun but the identification of accused/appellant Kishan Lal was not held as per the law. The co-accused Ram Bahadur was identified in the jail by P.W.1 Smt. Maya Devi and the co- accused Ram Bahadur was acquitted by the Trial Court on the basis of same set of evidence. All the evidence against accused/appellant and co-accused Ram Bahadur was same but the co-accused Ram Bahadur was acquitted by the Trial Court while the accused/appellant was convicted. 24. From the evidence discussed above and in the facts and circumstances and the principal laid down in the case of Deepak Rajak (supra), the prosecution has failed to prove its case against the accused/appellant beyond reasonable doubt and the accused/appellant is entitled for benefit of doubt. The learned Sessions Judge has erred in convicting the accused/appellant for the offence punishable u/s 376, 323, 452 I.P.C. and sentencing him as mentioned above. 25. For the reasons recorded above, the appeal preferred by the accused/appellant Kishan Lal deserves to be allowed and the judgment and order dated 04.09.1990 passed by learned Sessions Judge, Dehradun in Sessions Trial no. 124/1989 State vs. Kishan Lal and another liable to be set-aside and on the basis of the discussions above the accused/appellant deserves for the benefit of doubt. 26. Accordingly, the appeal is allowed. The judgment and order dated 04.09.1990 passed by learned Sessions Judge, Dehradun is hereby set-aside. The accused/appellant Kishan Lal is acquitted for the charges levelled against him. The accused is on bail. He needs not to surrender, his sureties are discharged. 27. Let a copy of this judgment, alongwith the record of the Court below be sent back to the Trial Court. NCM: (Dharam Veer, J.) 04.07.2008