IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.961 OF 2001 (OLD NO.464/1994) Tara Datt Sharma S/o Bacchi Ram Sharma R/o Deena-D-Class Haldu Chaur P.S. Lalkuwan District-Nainital ……… Appellant Versus The State ……… Respondent Dated: November 26, 2008 Sri R.S. Sammal, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 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 16.3.1994 passed by IIIrd Additional Sessions Judge, Nainital in Sessions Trial No.314/1991, State Vs. Tara Datt Sharma, whereby the learned IIIrd Additional Sessions Judge has convicted the accused/appellant-Tara Datt Sharma under Sections 363, 366 and 376 of Indian Penal Code, 1860 (hereinafter to be referred as the I.P.C.) and sentenced him to undergo three years’ R.I. u/s 363 IPC, five years’ R.I. u/s 366 IPC and ten years’ R.I. u/s 376 IPC. It was also directed that all the sentences shall run concurrently. 2. I have heard Sri R.S. Sammal, learned counsel for the appellant as well as Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that Girish Chandra lodged the F.I.R. at Police Station Lalkuwan on 19.10.1990 with the averment that he had gone to Lalkuwan for his personal work and his mother had gone to field for cutting grass. When he came back to his house then his mother told him that his sister Usha was not in the home since 10 A.M. Then Ravindra Kumar and Pooran Chandra Joshi of the village informed him that her sister was going with the appellant/accused towards Haldwani by bus. With the same averments, he lodged the F.I.R. at Police Station Lalkuwan, District Nainital on 19.10.1990 at 4:05 P.M. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R., i.e., Ext.Ka-5 was prepared by Head Mohirror Chotte Khan. The necessary entry was also made in the G.D., carbon copy of which is Ext.Ka-6. The investigation of this case was entrusted to Sub Inspector, Sri Jitendra Kumar Tyagi, who during the course of investigation recovered the victim Usha on 20.10.1990 and the FARD was prepared, i.e., Ext.Ka-2. Victim Usha was medically examined by Dr. Urmila Joshi, Medical Officer and the X-ray of the victim was also conducted. The X-ray report is Ext.Ka-3 and the medical report is Ext.Ka-4. During the course of investigation, the I.O. prepared the site-plan of the place of occurrence, i.e., Ext.Ka-7. The I.O. also recorded the statement of the witnesses and after completing the investigation he filed the charge sheet against the appellant/accused u/Ss 363/366/376 IPC. That charge sheet is Ext.Ka-9. 4. Learned Additional Munsif Magistrate, Haldwani committed the case to the Court of Sessions on 25.11.1991 after giving necessary copies to the appellant/accused as provided u/s 207 Cr.P.C. 5. It appears from record that learned Sessions Judge transferred the case to IIIrd Additional Sessions Judge, Nainital for disposal according to law. 6. On 11.6.1992, learned IIIrd Additional Sessions Judge, Nainital framed the charge of offence punishable u/Ss 363/366/376 IPC against the appellant/accused. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined P.W.1 Girish Chandra (complainant and brother of the victim), P.W.2 Usha (victim), P.W.3 Banshi Dhar, P.W.4 Dr. J.P. Bhatt (Medical Officer), P.W.5 Jitendra Kumar Tyagi (Investigating Officer). 8. 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. However, in defence, he has not produced any oral evidence but in documentary evidence he has filed the letters Ext.Kha-1 and Ext.Kha-2 written by the victim Usha to him. Learned counsel for the appellant has also admitted the genuineness of the document i.e. medical report Ext.Kha-3 of the victim. 9. Before further discussion, it is pertinent to mention the injuries found on the body of the victim who was medically examined by Dr. Urmila Joshi, Medical Officer on 20.10.1990 at 5:15 P.M. and has found the following injuries on her body, which are reproduced as under:- “M.I. – An old scar of injury present on the forehead on left side just below the hair line. Height – 4´6´´ Teeth – 13/12 Axillary and pubic hairs – brownish developing Breast – developing There are no external marks of injuries or violence present all over the body. Internal examination – There are no marks of violence present. According to her own statement her menses is irregular and she has menstruated about one and a half months back. Vagina admits one finger loose, it seems to be of normal size, hymen absent. Vaginal smear made and send for examination – report awaited For age – X-ray of wrist and elbow advised”. 10. X-ray of the victim was also conducted and the X-report is reproduced as under:- “M.I. An old scar of injury present on the forehead on left side just below the hair line. X-ray findings – (i) Both wrist AP view (a) Epiphysis of lower end of both right and left radius and ulna are not fused. (b) All the carpal bones are present on both the hands. (ii) X-ray both elbow AP view (a) Epiphysis of medial epicondyle of both right and left humerus not fused. (b) Epiphysis of upper end of both right and left radius not fused”. 11. To prove above noted X-ray report, the prosecution has examined P.W.4 Dr. J.P. Bhatt (Medical Officer), who has proved the X-ray report Ext.Ka-3. He has further stated that the age of the victim Usha was less than 14 years. He further stated the internal examination of the victim Usha was done by Dr. Urmila, who has prepared the medical report Ext.Ka-4 of the victim. In the cross-examination, he has stated that the development of Epiphysis depends upon the diet, atmosphere and the status of the family and no definite opinion can be given for it. He further stated that in comparison with the Plain, fusion in the epiphysis starts at later stage in Nainital. He further stated that in his opinion fusion has been started and on the basis of X-ray, solid evidence cannot be given, only the opinion can be given. **Fusion 'kq: gks x;k FkkA X-ray ds vk/kkj ij flQZ jk; nh tk ldrh gSA Bksl izek.k ughaA* 12. Further to prove its case, the prosecution has examined P.W.1 Girish Chandra, who has stated that the victim Usha was his sister and at the time of the incident her sister was studying in Class VI and was about 13 years old. He further stated that he had gone to Lalkuwan for some work. When he came back to his house his mother told him that his sister Usha was not at home since 10 A.M. Then he went for the search of his sister. Ravindra and Pooran met him and they informed him that Usha was going with the appellant/accused Tara Datt Sharma towards Haldwani by bus. Then on this information, he lodged the F.I.R. Ext.Ka-1. He has further stated that next day at about 2:30 P.M. victim Usha was recovered from Nagla Bypass . In the cross-examination, he has stated that his house is at a distance of 1/2km from main road. 13. P.W.2 is the victim Usha, who has stated that at the time of the incident she was about 13 years old and she was studying in Class VI. She further stated that on the date of incident the appellant/accused Tara Datt told her that her brother has got accident and she was called at Lalkuwan. She has further stated that then she sat on the bus of Kichha along with Tara Datt. Thereafter the appellant/accused had taken her in the forest and there he committed rape with her against her wishes. Next day near Nagla she along with the appellant/accused were caught by the police personnel. She further stated that then her medical examination was done and her X-ray was also conducted. After that she was given in the supardagi of her father. In the cross-examination, she has stated that from Haldu Chaur she and the appellant/accused travelled by bus. She further stated that in the Haldu Chaur there is a market. She further stated that the bus was full of passengers and due to fear of the appellant/accused she had not made any noise. In para- 9 of the cross-examination, she has admitted that the letters Ext.Kha-1 and Ext.Kha-2 were written by her to the appellant/accused. 14. P.W.3 is Banshi Dhar, who has stated that before three years at about 2-2:30 P.M. police personnel brought the victim Usha and the appellant/accused Tara Datt and the FARD was prepared, i.e., Ext.Ka-2 and he has signed on it. 15. P.W.5 is S.I. Jitendra Kumar Tyagi, who has stated that on 19.10.1990 he was posted at Police Station, Lalkuwan. He further stated that Chik F.I.R. of this case was prepared by Head Mohirror Chotte Khan, i.e., Ext.Ka-5. The necessary entry was made in the G.D., carbon copy of the G.D. is Ext.Ka-6. Investigation of this case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses, inspected the place of occurrence and prepared the site- plan Ext.Ka-7. He further stated that on 20.10.1990, victim Usha was recovered and then he has prepared the FARD of the recovery of the victim, i.e., Ext.Ka-2. The entry regarding this was also made in the G.D., carbon copy of which is Ext.Ka-8. After completing the investigation he filed the charge sheet against the appellant/accused. That charge sheet is Ext.Ka-9. 16. Thereafter 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 has denied the allegations made against him. However, in defence, he has not produced any oral evidence but in documentary evidence he has filed the letters Ext.Kha-1 and Ext.Kha-2 written by the victim Usha to him. Learned counsel for the appellant has also admitted the genuineness of the document i.e. medical report Ext.Kha-3 of the victim. This medical report is reproduced as under:- “ No spermatozoa seen, only vaginal epithetical cells and bacteria seen.” 17. Learned counsel for the appellant/accused has submitted that as per the evidence discussed above the evidence of the victim does not inspire a confidence and her evidence is also not corroborated from the medical evidence and the victim Usha was major at the time of incident. Hence, he submitted that the charge u/Ss 363, 366 and 376 IPC is not made out against the appellant/accused. I find substance in the argument raised by learned counsel for the appellant/accused due to following reasons:- (i) P.W.2 Usha has stated in her statement that the appellant/accused committed rape with her but in the medical report Ext.Kha-3 which was produced by the medical officer shows that in the vaginal smear examination of the victim no spermatozoa was seen. Thus the oral evidence of P.W.2 Usha does not gets corroboration from the medical evidence. (ii) P.W.2 Usha has also stated in her statement that she had gone from her house to Haldu Chaur which was at a distance of about 1/2km from her house. In Haldu Chaur there was a market from where she got the bus and from there she went to Nagla along with the appellant/accused. On the next day at 2:30 P.M. she along with the appellant/accused was caught hold by the police at Nagla at the public place. It has also come in the statement of the victim that the bus was full of passengers and she had not raised any hue and cry while passing through the way. When the bus was full of passengers and she has travelled from Haldu Chaur to Nagla which was about 20kms then while travelling why she had not made any noise or complaint to anybody. This conduct of the victim also shows that she was the consented party. (iii) Ext.Kha-1 and Ext.Kha-2 are the love letters which were written by the victim to the appellant/accused. These letters show that she was having a love affair with the appellant/accused and she has gone with the appellant/accused with her own consent without any pressure. (iv) In the cross-examination, P.W.4 Dr. J.P. Bhatt, has stated that the fusion has been started. As per the law, fusion used to start in between 16-18 years of the age and two years’ margin in each side (upper or lower side) may be given while calculating age. Thus as per the evidence of P.W.4 Dr. J.P. Bhatt, if the fusion has been started, then she was about 18 years of age at the time of incident and if two years’ margin will be given in the higher side then the victim is more than 18 years of age at the time of incident, hence, she is considered major at the time of incident. 18. From the above said discussion, the prosecution has failed to prove the offence punishable u/Ss 363, 366 and 376 IPC against the appellant/accused. The above said discussion also finds support from a judgment rendered by the Hon’ble Supreme Court in the case of “Narayan Alias Naran v. State of Rajasthan” reported in (2007) 6 SCC 465. Paras 11, 13, 15, 16 and 17 of this judgment are relevant to mention here, which are as follows:- “11. In the cross-examination the prosecutrix (PW 3) stated that she boarded the trolley at about 5 o’clock in the evening and by 7 o’clock they reached Singhpur Village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the tractor happily. It is not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ext. P-5) she stated that the accused committed rape on her thrice by in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on kankar (rough way). She did not stated that she offered any resistance though she was physically very strong. Medical report (Ext. P-1) says that there were no injuries on the body of the prosecutrix (PW 3). There were no injuries on her private part. It is ultimately opined that “no definite opinion can be given regarding rape, however, she is habitual to sexual intercourse”. In the circumstances, is it possible to believe that the prosecutrix (PW 3) has been subjected to rape twice by the accused as alleged? In the first information report (Ext. P-5) it is stated that the prosecutrix (PW 3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according to the prosecutrix (PW 3) was driving the tractor from Singhpur to Bharkiya crossing through a number of villages. It is not stated by the prosecutrix (PW 3) that she made any attempt to get down from the tractor at any point of time. On the other hand, it is stated by her that she sat in the tractor happily. 13. In the circumstances, we are of the considered opinion that the prosecution miserably failed to establish the charge against the appellant for the offence punishable under Section 376 IPC. 15. For all the aforesaid reasons, we hold that the prosecution failed to establish the charges framed against the appellant for the offences punishable under Sections 376 and 392 IPC. The conviction as well as sentences imposed upon the appellant for the offences punishable under Sections 376 and 392 IPC are accordingly set aside. 16. The appeal is allowed”. 19. Learned counsel for the appellant/accused has further submitted that there is sole evidence against the accused/appellant which does not inspires a confidence. I find substance in the argument advanced by learned counsel for the accused/appellant as it has discussed above that the only evidence against the accused/appellant is P.W.2 Usha and there is no other evidence which can prove that the appellant/accused has committed rape with her. The solitary evidence available in the file is of P.W.2 Usha who has only stated in her statement that rape was committed with her by the appellant/accused but her evidence is not corroborated from the medical evidence. Thus the evidence of P.W.2 Usha does not inspires a confidence and it is a settled principle that when there is sole witness to the incident her evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. I am fortified my view with the verdict of Hon’ble Apex Court in the case of “Joseph Vs. State of Kerala” reported in 2003 (1) Supreme Court Cases, 465. Para 13 of this judgment is essential to mention here to, which is reproduced hereunder:- “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 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. From the evidence discussed above, the evidence of P.W.2 Usha is not cogent, reliable, trustworthy and does not inspire a confidence. Therefore, no reliance can be put on the statement of P.W.2 Usha and on the basis of the evidence of P.W.2 Usha, conviction and sentence of the accused/appellant as awarded by the trial court is not justified and as per law and is liable to be set aside. 21. After considering the entire facts and circumstances of the case and in view of the aforesaid quoted judgments of Hon’ble Supreme Court (supra), the prosecution has not proved its case against the accused/appellant beyond reasonable doubt and I do not concur with the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 22. For the reasons recorded above, the appeal preferred by the appellant/accused Tara Datt Sharma is allowed. The judgment and order dated 16.3.1994 passed by IIIrd Additional Sessions Judge, Nainital in Sessions Trial No.314/1991, State Vs. Tara Datt Sharma, is hereby set aside. The conviction of the accused/appellant-Tara Datt Sharma u/Ss 363, 366 and 376 IPC and sentence of three years, five years and ten years R.I., respectively, is also set aside. The appellant is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. 23. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned. (Dharam Veer, J.) 26.11.2008 RG