HIGH COURT OF JAMMU AND KASHMIR AT JAMMU 1.Cr. Appeal no. 15-A/2003 2.Cr. Rev. No. 20/2004 Date of Decision: 04.02.2009 1. Anjay Kumar Alias Anjay Singh vs. State 2. State vs. Anjay Kumar CORAM: MR. JUSTICE J. P. SINGH, JUDGE. Appearing counsel: For the appellant : Mr. D. K. Khajuria, Advocate with Mr. Vikukash Anand, Advocate. For Respondents : Mr. S. C. Gupta, AAG. i) Whether approved for reporting in Press/Journal/Media : Yes ii) Whether to be reported in Digest/Journal : Yes _______________________________________________________________________________ Suffering conviction under Section 376 RPC, And sentenced to rigorous imprisonment for two years besides fine of Rs. 5,000/- and in default thereof to further rigorous imprisonment of three months, by the Additional Sessions Judge, Kishtwar, the appellant, through this appeal under Section 410 of the Code of Criminal Procedure, Samvat, 1989, has approached this Court for his acquittal. State too has filed its Criminal Revision no. 20/2004 seeking enhancement of the sentence awarded to the appellant by the trial court. 2 FACTS; Facts leading to the filing of the Criminal Appeal and State’s Criminal Revision petition, may be stated thus:- Ajeet Raj-PW-1 had lodged a police report with Police Station, Kishtwar on September 22, 1998 at 10.45 p.m. saying that his minor daughter, who is described as Ms. X in this judgment, after finishing cooking of evening food, had gone out of the house situated at Village Kuleed, Kishtwar on September 18, 1998, for urination when appellant-Anjay Kumar committed rape on her after gagging her mouth. On coming out to find her, he saw the appellant running away therefrom. His daughter was lying naked at that time. On being brought into the room, she had disclosed him about the occurrence. He accordingly informed appellant’s father about the incident. He was, however, told by the latter to wait till 2.00 p. m. Finding no response from appellant’s father, he went to his place in the evening when appellant’s father and other members of his family had indulged in stone pelting on him. FIR NO. 157/98 was thereafter registered at Police Station, Kishtwar on the basis of his written report. 3 After investigation of the occurrence, a police challan was put up against the appellant which was thereafter tried by learned Additional Sessions Judge, Kishtwar. The Prosecution produced seven witnesses to support its case. These were; PW-1, Ajeet Raj, the father of the victim, PW-2, the victim, PW-3, Mst. Suraj Bala, the step mother of PW-2, PW-4, Inder Jeet, one of the witness to the seizure memo of PW-2’s Shalwar, PW-5, Mst. Veeran Wazir, PW-6, Dr. Chandra Dogra, who had examined the victim besides PW- Dr. Ganesh Singh, who had examined the appellant. According to PW-1, his daughter, after finishing cooking of evening food, had gone out for urination. Noticing that she had not returned, he sent his wife PW-3 to look for her. She could not, however, locate her, whereafter he himself came out of his room and found his daughter weeping outside the house with her trousers off. He had seen appellant running away therefrom. His wife also came out and helped her daughter to put the trousers on. His daughter was unconscious and would not disclose any thing. On regaining consciousness after about one and a half hour, she disclosed that she had hardly stood up after urinating that the appellant 4 jumped upon her, took her backward, gagged her mouth, raped her and thereafter ran away. He visited appellant’s father next morning for assembly of villagers but was threatened by him not to make such type of allegations against his son. Appellant’s father is stated to have lodged a false report with the police about stone pelting. He was arrested in a false case at the instance of appellant’s father but was later released whereafter he had lodged police report about the occurrence. While under cross-examination, he says that FIR had been lodged against him and his brother Kulbir Singh by appellant’s father on 19th September, 1998 in regard whereto a police challan was pending trial before Judicial Magistrate Ist Class, Kishtwar. He had been released by the police on 20th September, 1998. After getting her daughter medically examined on 21st September, 1998, he had lodged FIR on September 22, 1998. Appellant’s mother is admitted by him to have been injured and later hospitalized. PW-3, Mst. Suraj Bala, step mother of PW-2, says that after cooking evening meals, PW-2 had gone out to ease herself at about 8.00 p.m. when she was watching Television with her husband in a room. When PW-2 did not return for 5 about 10/15 minutes, she came out to look for her but could not find her. She accordingly informed her husband that PW- 2 was nowhere to be found, whereafter, her husband too accompanied her to look for their daughter. They went backwards and saw the appellant running away. Their daughter was lying unconscious with her trousers off. She was brought inside and on gaining consciousness she had disclosed that appellant had caught hold of her when she had gone out for urination. PW-2 had been passing through menstrual period at that time. Appellant’s father was thereafter approached, who initially told them to wait, but later started pelting stones. The matter was reported to the police. During her cross-examination, she admits that appellant’s family had lodged police report against her husband and a criminal case was pending trial in this connection before Judicial Magistrate Ist Class (Sub-Judge), Kishtwar. She denies about any litigation between the two families, but admits that appellant’s mother had been hospitalized. She had not noticed any one outside her house when she had gone in search of her daughter. She came out 6 for the second time after about twenty minutes. Police visited the spot after third day of the occurrence. PW-2, the victim, says that after finishing cooking of evening food, she had gone out to urinate and was tying the girdle string when the appellant who was hiding in the nearby bush, jumped upon and raped her. She raised noise and became unconscious. Her parents had come out and seen the accused running away. During her cross-examination, she says that the two families, i.e., one belonging to her and the other to the appellant had quarreled and the appellant’s family had brought police in connection with the scuffle which had taken place between the two families. She, however, did not know as to how many days after the occurrence, the police had come on spot. Appellant is stated to be sitting against the fence at the time of the occurrence. He had raped her despite her raising noise by the side of a room where her parents were watching television and there is a window too in that room. After hearing noise, her parents had come out. She had not told her parents about the incident that time because she was unconscious. She had been taken to the hospital, the next day. 7 PW-5 Mst. Veeran Wazir has proved victim’s date of birth as 12th November, 1982 as it stood recorded in the official School records. PW- 6 Dr. Chandra Dogra says that she was posted as Assistant Surgeon in SDH Kishtwar on 21.09.1998 when she had examined Sheetal Kumari brought by Swami Raj, Constable Police Station Kishtwar at about 12.15 p.m. Her examination had revealed swelling of right wrist and hand. Breast had been found well developed. Patient had applied some charcoal like material on the nipple of breast. Menstrual history was regular. On Vaginal Examination she had found some blackish charcoal type material present on the vagina and hair too were found matted badly. On PV Examination Hymen had been found absent. No laceration or signs of violence had been found. Smear taken for study of spermatozoa had revealed absence of spermatozoa. In her opinion the patient was habitual of intercourse. She had indicated that definitely intercourse had been performed with her although there was no sign of violence yet she had given her opinion that rape had been conducted, looking to the age 8 of the child which was just 14 plus. She had admitted issuance of certificate marked as EXPM-C. During cross examination she had stated that the patient had given her the history which she had stated in the certificate EXPM-C. Since some Charcoal type material had been applied on the nipple of the breast and vagina as such no definite opinion could be given by her as to when the rape had been committed and it was on the history revealed by the patient that she had also come to the conclusion that rape had been committed on the patient on 18.9.98. Her opinion was based on the saying of the patient that rape was committed upon the patient. On examination she had also come to the conclusion that the patient was habitual to intercourse. PW-4, Inder Jeet has proved the seizure of Shalwar of the victim. PW-Ganesh Singh while testifying the appellant’s age as 19 years, had found him physically fit for sexual intercourse. APPELLANT’S:VERSION: Denying the occurrence, the appellant attacks that the prosecution case as fabricated, and engineered by PW-1 to get 9 rid of the criminal case which the appellant’s father had lodged against him when he, while mounting attack on appellant’s family, had injured his mother. Appellant has produced Arun Kumar Sharma and Ranbir Singh as his witnesses in defence. APPELLANT’S COUNSEL’S SUBMISSIONS: Appearing for the appellant, his learned counsel says that the prosecution evidence is contradictory, un-natural besides being fabricated and as such was unworthy of credence. Improvements made by the prosecution witnesses, in the story which had been initially projected by PW-1, when looked in the light of statement of PW-6, Dr. Chandra Dogra, according to the learned counsel, would demonstrate fabrication of a false case against the appellant. Findings recorded by learned Additional Sessions Judge, Kishtwar have been additionally questioned as based on inadmissible evidence. STATE’S STANCE: Conceding that the prosecution had failed to explain the discrepancies which had come to light in the prosecution 10 case, learned State counsel made no submissions to justify appellant’s conviction and punishment. Allegations against the appellant having been found substantiated by the trial court, being of serious nature, it is considered appropriate to re-examine the whole case to find out the sustainability or otherwise of the prosecution case, notwithstanding the concessionary approach adopted by the learned Additional Advocate General. PW-1’s daughter has been proved by PW- 5, Mst. Veeran Wazir, Principal, Government Girls Higher Secondary School, Kishtwar, to be minor, i.e., below 16 years of age, at the time of the occurrence. She had certified PW- 2’s date of birth as 12.09.1982 as it stood recorded in the official School records. This statement of PW-5 has remained un-controverted. Age of PW-2, having been established by the prosecution evidence as below 16 years, at the time of the offence, all that the prosecution is required to prove to succeed in its case, is that the appellant had sexual intercourse with PW-2 on 18.9.1998, consent or otherwise of PW-2 to such intercourse, notwithstanding. 11 DISCUSSION: Examination of PW-2 by PW-6 Dr. Chandra Dogra indicates that PW-2 had been found to have applied charcoal like material on her breast nipples and vagina at the time of her examination. The medical certificate issued by Dr. Chandra Dogra which has been marked as EXPM-C too indicates that PW-2 had applied some blackish charcoal type material on her breast nipples and vagina. This certificate additionally indicates about registration of a case against PW- 2’s father in Police Station, Kishtwar regarding a scuffle which had taken place on 18.9.1998. Taking into consideration appellant’s defence that the prosecution case had been fabricated at the instance of PW-1 who had attacked his family members and injured his mother for which a case had been registered in Police Station, Kishtwar, in the light of the observations of Dr. Chandra Dogra that PW-2 had applied charcoal on her breast nipples and vagina, the prosecution case needs to be examined with care and caution. Public documents placed on records by the accused, i.e., certified copy of FIR no. 156/98 registered at Police Station 12 Kishtwar on 19.9.1998 at the instance of appellant’s father and police Challan no. 64 arising out of the FIR indicate that appellant’s father had approached the Police Station with his injured wife, Mst. Sheela Devi, at about 10.00 p. m., saying that PW-1 and one Kulbir Singh had attacked them with iron rods when they were taking their evening meals at about quarter past nine. PW-1 has tried to explain the delay in lodging FIR saying that he was waiting for response of appellant’s father and had lodged the police report when he had not received any response therefrom. This explanation is not, however, found convincing because nothing would prevent him from lodging FIR on 19th September 1998 itself when he had not received any response from appellant’s father. Another reason which renders his explanation unacceptable is that police is admitted by the victim to have been brought by the appellant’s family in connection with the scuffle which had taken place between the two families. If that be the position, then nothing prevented PW-1 or his other family members to lodge report regarding the alleged rape of PW-2 by the appellant. There is thus no explanation as to why FIR was not 13 lodged on 19th, 20th or 21st September, 1998 when according to PW-1’s own showing, he stood released in the case registered at the instance of appellant’s father on 20th September, 1998 itself. PW-1’s version that he had been released on bail by the police is, however, not supported by police challan no. 64 which indicates his release on the orders of the Court. Investigating Police Officer has not appeared in the case to explain the delay in PW-1’s lodging the FIR about the occurrence of 18.09.1998. Yet another thing which remains un-explained in the present case by the prosecution is regarding Dr. Chandra Dogra’s conducting medical examination of PW-2 on September 21, 1998 at 12.15 p.m., i.e., a day prior to the registration of FIR and her issuing certificate regarding PW- 2’s examination on police request memo which is shown to have been prepared by SHO, Police Station, Kishtwar on September 22, 1998, a day after the issuance of certificate by Dr. Chandra Dogra. 14 PW-1 to PW-3 have not explained as to how charcoal came to be applied by the victim on her breast nipples and vagina. PW-2’s examination by Dr. Chandra Dogra, a day earlier to the registration of FIR and that too without there being any request letter in this behalf by the police, goes a long way in demonstrating that observations made by Dr. Chandra Dogra regarding examination of PW-2, may not be above board. The manner in which the certificate has been prepared by Dr. Chandra Dogra too hints at manipulations. All this indicates that attempts appear to have been made to create evidence to justify the FIR against the appellant. Dr. Chandra Dogra’s statement in the court is categoric, that her finding about PW-2’s having been subjected to sexual intercourse on 18.9.1998, was not based on the result of her examination of PW-2. It was, on the other hand, according to her, founded on the basis of the statement which PW-2 had made to her at the time of her examination. PW-2 has been found habitual to intercourse by PW-Dr. Chandra Dogra, and is stated to have sexual intercourse with the 15 person who had committed rape on her on 18.09.1998 even six months prior thereto. Statement of Dr. Chandra Dogra, therefore, cannot be said to be corroborating the prosecution story that PW-2 had sexual intercourse on 18.9.1998 because she had not given any expert opinion regarding PW-2’s having been subjected to sexual intercourse on the basis of the result of PW-2’s clinical examination by her. Dr. Chandra Dogra had neither found any spermatozoa in the vagina nor had she noticed any evidence of violence on PW-2. That apart, I find variance in the version which PW-1 had projected at the time of lodging the FIR and which he had projected while appearing as a prosecution witness in the trial court. Narration of PW-1 to PW-3 about the occurrence too indicates variations, in that, according to PW-2, the victim, the rape had taken place within five minutes whereas according to PW-1 and PW-3, PW-2 had remained out of the house for about half an hour. According to PW-2, she had raised noise when she had been attacked by the appellant and on hearing noise, her parents had come out. The parents, however, do not indicate 16 about this and, on the other hand, had projected a story that as PW-2 had not come back for sufficiently long time so they had gone out in her search. Statement of PW-2 that appellant was hiding by the side of a bush too stands falsified as no such bush is shown to be existing at or near the place of occurrence. Another factor which makes the prosecution story reasonably doubtful is that according to the version projected by PW-2, some amount of natural light was still there when she had gone out for urination. This statement of the prosecution, is found to be false, in that, Sun set in the area is shown to have been recorded in the Panchang at 6.28 p.m. and at about 7.00 p.m. there was complete darkness in the area because the day following, is shown a dark night, i.e., Amavasya and the moon had appeared on the alleged day of occurrence after 12 in the night. Occurrence is not stated to have been witnessed in the electric light by any of the prosecution witnesses and the site plan too does not indicate about the existence of any electric light where the occurrence is stated to have taken place. 17 Prosecution story that occurrence had taken place at about 8.00 p.m. and PW-1 and PW-3 had seen the appellant running away in the fields, therefore, becomes highly doubtful in view of the Sun setting in the area at 6.28 p.m and the moon appearing after 12 in the night. Significant omission of the complainant in indicating the time when the occurrence had taken place, in the FIR too casts doubt on the prosecution story. Learned trial court has held the appellant guilty on finding that victim’s version was supported by the medical evidence as also by report no. 825/98 dated 30th October, 1998 in terms whereof presence of semen/human spermatozoa and menstrual blood had been found in exhibit B-366/98, i.e., the Shalwar of the victim. I find the trial court to have erred in placing reliance on report No. 825/98 dated 30.10.1998 because neither report had been tendered in evidence nor had it been proved, as required by Section 510 of the Code of Criminal Procedure that the Shalwar had been duly submitted to the expert for its opinion. This is so because the prosecution had not taken any steps to produce the Investigating Officer in the case who 18 could have indicated about sending of the Shalwar of PW-2 to the Forensic expert. There is no expert evidence either on records on the basis whereof it may be said that at the time of PW-2’s examination, she had been found to have indulged in sexual intercourse, in that, the findings of Dr. Chandra Dogra are not on the basis of her clinical examination of PW-2. PW-2’s examination, on the other hand, by Dr. Chandra Dogra had, however, indicated absence of human spermatozoa. Findings of learned Sessions Judge that the version given by PW-2 was supported by the medical and Forensic evidence is thus unsustainable. For all what has been said above, I am of the opinion that un-explained presence of charcoal on the breast nipples and vagina, examination of the victim, a day before the lodging of FIR, non-mentioning of the time of occurrence in the FIR, absence of light at the place of occurrence, discrepancies, improvements and embellishments in the prosecution evidence besides non-production of Investigating Police Officer in the case, and filing of police challan against 19 PW-1, raise reasonable doubt about the truthfulness of the prosecution story. In view of the above discussion, the prosecution cannot be said to have proved its case against the appellant beyond reasonable doubt. It cannot thus be held proved that the appellant had sexual intercourse with PW-2 on 18.09.1998. Conviction and sentence of the appellant cannot thus be sustained. Allowing this appeal, judgment dated 17.11.2003 and order of November 19, 2003 of learned Additional Sessions Judge, Kishtwar are accordingly set aside And allowing the benefit of reasonable doubt, the appellant is, accordingly, acquitted of the charge. Appellant having not been found involved in any offence, State’s Criminal Revision petition would thus resultantly fail. It is accordingly dismissed. (J. P. Singh) Judge JAMMU: 04.02.2009 Anil Raina, Secy