RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.144 OF 2006 (Old No.988/1992) Chaitu Lal ……… Appellant Versus The State ……… Respondent Dated: March 27, 2009 Sri Pankaj Purohit, learned counsel for the appellant Sri M.A. Khan, learned brief holder 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 08.05.1992 passed by Sessions Judge, Chamoli in Sessions Trial No.36/1991, State Vs. Chaitu Lal, whereby the learned Sessions Judge has convicted the appellant/accused u/s 354 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and also under Section 511 r/w Section 376 IPC. Appellant/accused was sentenced to one year’s rigorous imprisonment u/s 354 IPC. He was further sentenced to two years’ R.I. with fine of Rs.200/- u/s 511 r/w Section 376 IPC. It was also directed that the sentences of imprisonment so awarded to the appellant/accused shall run concurrently. 2. I have heard Sri Pankaj Purohit, learned counsel for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 2 3. In brief, the prosecution case is that complainant Bhagirathi Devi (P.W.1) moved an application before CJM, Chamoli on 16.1.1991 with the averments that appellant/accused was having enmity prior to this incident with the family of the complainant and before this incident also, appellant/accused had also committed indecent behavior, for that the case is pending in the court. She further averted that the intention of the appellant/accused was to establish physical relations with the complainant so as to make her insulted and for this reason, appellant/accused used to molest her in the past. The husband of the complainant was doing business of tailoring since the month of December at Sartoli, Nandprayag and her husband was living there along with his second wife. The two daughters namely Saroj aged about 11 years and Mahesh aged about 8 years, were living along with her. On 12.1.1991 appellant/accused came in the village from outside and after seeing the complainant alone, tried to molest her on the way. In the night of the same day at about 10:00 P.M., complainant along with her daughters, after taking dinner and putting off the clothes, was sleeping inside her house. Meanwhile, she heard the noise on the door of strong pushing and the door had opened. Then the appellant/accused, who was slightly in drunken state, entered in the room and uttered that he would not leave the complainant. While seeing the appellant/accused excited, the complainant tried to get up from her bed but the appellant/accused pounced upon her and got her to fall on her bed. Then he raised the petticoat of the complainant and tried to commit rape with her. Then the complainant had raised noise and on hearing the noise, her daughters, who were sleeping there, had awakened and they requested the appellant/accused to leave their mother. By then the 3 complainant also got up from her bed and picked up a Fanta (stick). Then the witnesses Matbar Singh and Gopalu arrived on the place of occurrence and challenged the appellant/accused not to do any unfair activity otherwise the villagers will not spare him. Due to fear, appellant/accused ran away from there. Appellant/ accused while running away had threatened the prosecutrix that if she would disclose this incident, he would kill her and further threatened her that he would make her wife. On the next day morning, the complainant had gone to his husband at Sartoli and then on 16.1.1991, she moved the present application, i.e. Ex.Ka-1. On this application, CJM concerned has passed an order to the Patwari concerned for the investigation as per law on the same day i.e. on 16.1.1991. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). On the basis of this application, Patwari Raduwa prepared the Chik FIR on 17.2.1991 at 10:00 A.M., i.e. Ex.Ka-2. The necessary entry was also made in the G.D., the copy of which is Ex.Ka-3. The I.O./Patwari during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-4. He also recorded the statements of witnesses during the investigation and after completing the investigation, filed the charge sheet, i.e. Ex.Ka-6. 4. After receiving the charge sheet, the Munsif Magistrate, Karanprayag has committed the case to the court of Sessions on 12.12.1991 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 4 5. Learned Sessions Judge, Chamoli framed charge against the appellant/accused under Section 354 IPC and u/s 511 IPC r/w Section 376 IPC. The charge was 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 Bhagirathi Devi, complainant and victim, P.W.2 Km. Saroj, daughter of the victim and eyewitness, P.W.3 Raidas, husband of victim, P.W.4 Mohan Das and P.W.5 Bhupendra Singh, Patwari/IO of the case. 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. In oral evidence, he has examined D.W.1 Vijay Ram Misra and in documentary evidence, he has filed copy of entry made in Dak Challan Register as Ex.Kha-1. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Chamoli vide judgment and order dated 08.05.1992 convicted and sentenced the appellant/accused as above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. To prove its case, the prosecution has examined P.W.1 Bhagirathi Devi, who has stated that her husband does the work of tailoring in Sartoli Nandprayag, Distt. Chamoli. Her husband is having another wife and he along with his second wife resides in Sartoli. She is having three children (two daughters and one son) and 5 out of them, two daughters namely Sarojini and Maheshi reside with her. Appellant/accused Chaitu Lal, who was present in the court, was known to her. On the date of incident at about 10:00 P.M., she after taking dinner, was sleeping along with her daughters in the house and the lamp was lit in the room. Then appellant/accused Chaitu Lal had given a strong push at the door of the room due to which the door had opened and the appellant/accused came in the room where she was sleeping. Then the appellant/accused sat over her and started raising her petticoat. When she tried to get up from her bed, then appellant/accused told her that he would not leave her. She started weeping and at that time her daughters had also awaken. Then her daughter Sarojini (P.W.2) came and requested the appellant/accused to leave her mother. After that wife of Chaitu Lal had come there and had taken appellant/accused from there by holding his neck. She further stated that the appellant/accused wanted to behave with her indecently and commit rape with her. On the next day she had gone to her husband along with her daughters and narrated him about the entire incident. Then she had gone to Gopeshwar and in the court of CJM, Gopeshwar, she filed the complainant, i.e. Ex.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is reliable and believable. 10. P.W.2 is Km. Sarojini, aged about 11 years, who has stated that her father was doing business of tailoring in village Sartoli Nandprayag, Chamoli. In village Salna, she along with her mother and sister Maheshi was residing in the house. She also identified the appellant/ accused in the court. She further stated that the 6 appellant/accused misbehaved with her mother. On the date and time of incident, she was sleeping in the room and her mother and her sister Maheshi, both were also sleeping in the same room. She further stated that she had seen the appellant/accused Chaitu while sitting on the chest of her mother. She further stated that she begged the appellant/accused to leave her mother and then the wife of Chaitu Lal had come there who taken him from there by holding his neck. This witness was also cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is also reliable and believable. 11. P.W.3 is Raidas, husband of the victim. He has stated that he does the work of Tailoring at Village Sartoli Nandprayag, Distt. Chamoli. In Village Salna, his wife Bhagirathi and two daughters were residing. He further stated that his wife had come at village Sartoli and informed him that on the date of incident, the appellant/ accused Chaitu entered inside the house by breaking the door at about 10:00 P.M. He further stated that his wife informed him that she along with her daughters was sleeping in the house after putting off the clothes. Appellant/accused Chaitu entered into the room and sat over his wife. On the noise raised by his wife, the children woke up. His wife further informed him that wife of appellant/accused Chaitu had come and took the appellant/accused from there. After that he along with his wife had come at Gopeshwar court to file the complaint. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. 7 The statement of this witness is also reliable and believable. 12. P.W.4 is Mohan Das who has stated on the date of incident, he had gone to village Danda to search a goat for the worship of the Devta. Since the price of the goat that was demanded from him was excessive, hence he had not purchased the goat and had come to village Salna at about 6 P.M. where he found the victim- Bhagirathi Devi. Since Smt. Bhagirathi was alone in her house, he did not feel proper to stay there and he had gone to the house of appellant/accused Chaitu Lal and had stayed there. He further stated that as per the custom of the village, appellant/accused Chaitu Lal was his brother. He further stated that at about 10 P.M. he heard a noise from the house of Raidas. Then he had gone out of the room and saw the appellant/accused Chaitu Lal and his wife were coming out from the house of Smt. Bhagirathi Devi. He further stated that when he was going inside the house of Chaitu Lal, he heard the cries of Smt. Bhagirathi Devi who was saying that appellant/accused Chaitu Lal had quarreled with her about the matter. Then appellant/ accused Chaitu Lal told him that there was litigation between him and Raidas. On the next day, he came back to his house. 13. P.W.5 is Bhupendra Singh, Patwari/IO of the case. He has stated that on 17.2.1991 he was posted as Patwari at Patwari Circle Raduwa, Tehsil & Distt. Chamoli. On that day, Bhagirathi Devi had come along with written report Ex.Ka-1. Along with the report, he also received 8 the order dated 16.1.1991 passed by CJM, Chamoli. On the basis of that written report, he prepared the Chik FIR, i.e. Ex.Ka-2. He also made the entry of the case in the G.D., the copy of which is Ex.Ka-3. He also prepared the site plan of the place of occurrence, i.e. Ex.Ka-4. During the course of investigation, he recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused, i.e. Ex.Ka-6. 14. 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. In oral evidence, he has examined D.W.1 Vijay Ram Mishra who has stated that on 13.1.1992 he was posted as Naib- Tehsildar at Tehsil & Distt. Chamoli. He has stated that in the capacity of Naib Tehsildar, Chamoli, the entire record remains in his custody. He further stated that he has no knowledge that Smt. Bhagirathi Devi had given any such application for submission of the final report in the court of CJM, Chamoli. But an entry of submission of application is there in the Dak Challan Register on 11.6.1991 and according to said entry, it reveals that an application given by Smt. Bhagirathi Devi on 11.6.1991 was sent to the court of CJM, Chamoli from his office. He has field a copy of the said entry and proved the same, i.e. Ex.Kha.1. In cross-examination he has stated that he could not say about which application the entry was made in the register. 15. Sri Pankaj Purohit, learned counsel for the appellant/accused has submitted that as per the evidence discussed above, the case against the appellant/accused 9 is not proved by the prosecution beyond reasonable doubt. I do not find any substance in the argument of learned counsel for the appellant/accused as P.W.1 Smt. Bhagirathi Devi, who is the victim of the case, has stated that appellant/accused Chaitu Lal, who was present in the court, was known to her. On the date of incident i.e. 12.1.1991 at about 10:00 P.M. at village Salna, she after taking dinner, was sleeping along with her daughters in the house and the lamp was lit in the room. Then appellant/accused Chaitu Lal had given a strong push at the door of the room due to which the door had opened and the appellant/accused came in the room where she was sleeping. Then the appellant/accused sat over her and started raising her petticoat. When she tried to get up from her bed, then appellant/accused told her that he would not leave her. She started weeping and by that time her daughters had also awaken. Then her daughter Sarojini (P.W.2) came and begged the appellant/accused to leave her mother. After that wife of Chaitu Lal had come there and had taken appellant/accused from there by holding his neck. She further stated that the appellant/accused wanted to behave with her indecently and he wanted to commit rape with her. On the next day she had gone to her husband along with her daughters and narrated him about the entire incident. Then she had gone to Gopeshwar and in the court of CJM, Gopeshwar, she filed the complainant, i.e. Ex.Ka-1. The statement of P.W.1 Smt. Bhagirathi Devi is reliable, believable, natural and inspires confidence and the same is also corroborated with the evidence of P.W.2 Km. Sarojini, who is eyewitness of the case as well as with the circumstantial evidence of P.W.3 Raidass and P.W.4 Mohan Dass. Thus, the offence punishable u/s 354 IPC and offences punishable u/s 511 IPC r/w Section 376 IPC, is clearly proved against the appellant/accused by the prosecution beyond reasonable doubt. 10 16. It was further argued on behalf of the appellant that the delay in lodging the FIR has not been explained by the prosecution. There is again no force in this argument. The present incident is said to be happened on 12.1.1991 at about 10:00 P.M. in the remote hilly village Salna and the husband of victim resides at Sartoli Nandprayag. On the next day i.e. on 13.1.1991, P.W.1 Smt. Bhagirathi Devi had gone to her husband and then narrated the entire incident to him. Then she had gone to Gopeshwar along with her husband and filed the complaint there in the court of CJM, Chamoli, which is far away from the place of occurrence. In the above-said facts and circumstances of the case, I am of the view that the delay in lodging the FIR is explained by the prosecution by sufficient cause and it does not go to create any doubt in the prosecution story. 17. Learned counsel for the appellant/accused further argued that the appellant/accused and the husband of the complainant were having enmity with each other before the incident. It is admitted between the parties that prior to the incident, the litigations were going on in between the parties. But it is pertinent to mention here that the enmity is the double-edged weapon. The statement of P.W.1 Smt. Bhagirathi Devi and P.W.2 Km. Sarojini is reliable, believable and natural. As such, only on the basis of enmity, it cannot be said that any lady will lodge such a false case against a person about the above-said facts. From the above said discussion it is proved that the appellant/accused has committed the above-said offence only for the reason so as to get the victim insulted and further in order to outrage her modesty, he tried to commit rape with her 11 and for that the ample evidence is available on the record. 18. In view of the above-said discussion, the prosecution has fully proved its case against the appellant /accused beyond reasonable doubt under Sections 354 IPC and u/s 511 r/w Section 376 IPC and the trial court is correct and justified in convicting and sentencing the appellant/accused as discussed above. I also concur the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above and there is no ground to interfere with the judgment and order passed by the trial court. 19. For the reasons recorded above, the appeal preferred by appellant/accused is devoid of merits and is accordingly dismissed. The judgment and order dated 08.05.1992 passed by Sessions Judge, Chamoli in S.T. No.36/1991, State Vs. Chaitu Lal, is hereby confirmed. The appellant is on bail. His bail is cancelled. Let him be taken into custody forthwith in order to serve out the sentence. 20. A copy of this order shall be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) March 27, 2009 Rajeev Dang