HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1687 OF 2001 (OLD NO.1551 OF 1997) 1. Vijay Kumar S/o Harak Ram 2. Rajendra Prasad S/o Sri Dayanand .……….. Appellants Versus State of Uttarakhand ...…….. Respondent Dated: March 25, 2010 Sri Deep Chandra Joshi, Advocate for the appellant no.1 Sri Siddhartha Sah, Advocate for the appellant no.2 Sri Amit Bhatt, Addl. GA for the State Hon’ble Dharam Veer, J. This criminal appeal, preferred by the appellants 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 29.7.1997 passed by Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No.537 of 1995, State Vs. Vijay Kumar and another, whereby the learned Special Judge has convicted the accused- appellant Vijay Kumar under Section 376 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to ten years’ rigorous imprisonment. Accused-appellant Rajendra Prasad was convicted u/s 376 read with Section 34 of IPC and was also sentenced to ten years R.I. 2. Heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution story is that complainant Harish Chandra (P.W.4) lodged a FIR alleging that on 8.8.1995 his sister Km. Janki Devi (P.W.1) along with Km. Jeevanti (P.W.2), Km. Ganga Devi and Km. Deepa had gone to take grass in the forest. After taking grass, when his sister was coming back with Km. Jeevanti then truck driver Vijay (the appellant herein) thrown the grass of his sister and committed rape with her forcibly. On hearing the scream of his sister, Km. Jeevanti reached there. After committing rape with his sister the accused/appellant Vijay then pounced upon Jeevanti. Accused/appellant Rajendra Prasad and Suresh Chandra were also with the accused/appellant Vijay Chandra. Later on, Ganga Devi and Deepa Devi also reached at the spot. Seeing these girls coming, the truck driver (appellant no.1) ran away. Thereafter his sister reached the house and narrated the incident to him. With the same averments, P.W.4 Harish Chandra, brother of the victim, lodged the FIR before Patwari Patti Sarna on 9.8.1995 at 10:30 AM. That FIR is Ext.Ka-3. On the basis of this FIR, Patwari prepared the Chik FIR, which is Ext.Ka-5. Necessary entries were also made by him in the G.D., carbon copy of which is Ext.Ka-6. (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 29.8.1995, the investigation of this case was transferred to regular police and then the investigation was conducted by P.W.5 R.S. Aswal, Station Officer, Police Station Mukteshwar. Victim Km. Janki was medically examined by P.W.3 Dr. Meena Bhatt on 9.8.1995 at 06:30 PM who after the medical examination prepared 3 the medical report Ex.Ka-1. On the basis of X-ray report, the same medical officer also prepared the supplementary report of victim, i.e. Ext.Ka-2. Km. Jeevanti (P.W.2) was also got medically examined on 11.8.1995 at 12:15 PM by Dr. D.P. Joshi (P.W.7) who after conducting her medical examination prepared the injury report, i.e. Ext.Ka-8. During the course of investigation, the Investigating Officer recorded the statements of the witnesses and inspected the place of occurrence and prepared the site-plan, i.e. Ext.Ka-7. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellants u/Ss 201, 323, 376 and 109 of IPC. That charge sheet is Ext.Ka-4. 4. After receiving the charge sheet, learned Chief Judicial Magistrate, Nainital committed the case to the court of Sessions on 21.11.1995, after giving necessary copies to the accused/appellants as prescribed u/s 207 Cr.P.C. 5. On 29.1.1996, learned Special Judge/Addl. Sessions Judge, Nainital framed the charge u/s 376 read with Section 34 of IPC against the accused/appellant Rajendra Prasad and also framed the charge u/s 376 IPC against the accused/appellant Vijay Kumar. The charges were read over and explained to each of the accused/appellant, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Km. Janki, victim, P.W.2 Km. 4 Jeevanti, injured eyewitness of the case, P.W.3 Dr. Meena Bhatt, Medical Officer, who medically examined the victim Km. Janki and prepared the medical report Ext.Ka-1 and supplementary report Ext.Ka-2, P.W.4 Harish Chandra, brother of the victim and complainant of the case, P.W.5 Station Officer R.S. Aswal, Investigating Officer of the case, P.W.6 Patwari Bhuwan Chandra Bhandari, Investigating of the case and P.W.7 Dr. D.P. Joshi, Medical Officer, who medically examined the injured Km. Jeevanti and prepared the injury report Ext.Ka-8. 7. Thereafter, the statements of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 8. After appreciating the evidence on record and hearing learned counsel for the parties, learned Special Judge/Additional Sessions Judge, Nainital vide his judgment and order dated 29.7.1997 convicted and sentenced the accused/appellants as mentioned above. Feeling aggrieved by the said judgment and order dated 29.7.1997, the accused/appellants have preferred this appeal. 9. Before further discussion, it is pertinent to mention here the medical report (Ex.Ka-1) of the victim Km. Janki Devi (P.W.1) who was examined on 5 9.8.1995 at 6:30 PM by P.W.3 Dr. Meena Bhatt, which is as under: - General Examination - Height 5´ 5´´ Weight 60 Kg Teeth 15/15 There are multiple scratches (heeled abrasions) present on back and left forearm. Internal Examination – No mark of injury seen on her private part. Vagina admits one finger, hymen torn, margins smooth, no bleeding or laceration seen, vaginal swab taken and sent for microscopical examination to S.S.J. Base Hospital Haldwani Pathologist. She is referred to Radiologist S.S.T. Base Hospital Haldwani for determination of her age; advice X-ray right wrist and right elbow joint. 10. After receipt of the X-ray Report, the same medical officer also prepared the supplementary report Ext.Ka-2 of the victim and opined as under: - Conclusion – No definite opinion about rape could be given. She is above 16 years and below 19 years. Injuries present on her back and forearm are simple in nature, duration about 24 hour, caused by friction. 11. To prove the above-noted medical reports, the prosecution examined P.W.3 Dr. Meena Bhatt who has proved the medical report Ex.Ka-1 and 6 supplementary medical report Ex.Ka-2 prepared by her. 12. Km. Jeevanti was also got medically examined on 11.8.1995 at 12:15 PM by P.W.7 Dr. D.P. Joshi, who after the medical examination prepared her injury report Ext.Ka-8, which is as under:- i) Abrasion 0.5 cm x 0.25 cm over right cheek 1.5 cm below right eye, dark brown scab. ii) Abrasion 2 cm x 0.5 cm over right side of abdomen over anterior iliac spine covered with dark brown scab. iii) Linear abrasion 1.5 cm over right side of abdomen 3 cm medial to injury no.2, covered with dark brown scab. iv) Linear abrasion 5 cm over interior aspect of left leg 8 cm above left ankle covered with dark brown scab. v) Complaint of pain over around neck, no external mark of injury. Opinion:- All injuries no.1 to 4 simple in nature, caused by blunt object, duration is about 3 days. 13. To prove the injury report Ext.Ka-8, the prosecution examined P.W.7 Dr. D.P. Joshi, who has proved the injury report Ext.Ka-8 prepared by him. He stated that injury nos.1 to 4 were simple in nature and could possibly be caused by blunt object. He opined that these injuries were also possible to come by throwing the injured. Injuries on the person of 7 victim were three days old and could possibly be caused in the evening of 8.8.1995. 14. To prove its case further, the prosecution examined P.W.1 Km. Janki Devi, who has stated that the accused/appellants were known to her. On 8.8.1995 at 3 PM, she had gone to cut the grass with Ganga, Deepa and Jeevanti. At 5 PM she was coming back after taking the grass. Jeevanti was ahead of her while Gang and Deepa were behind her. When she reached at Shikare ki dhar then a truck UHB 5053, coming from the side of Padampuri, stopped there. Accused/appellant Vijay Kumar, who was the driver of the truck, stepped down and thrown the grass from her head. He then thrown her on the road and hold her chest. He committed rape with her and torn her salwar. She tried to save herself but the accused/appellant did not leave her. She further deposed that the accused/appellant Vijay Kumar committed rape with her five minutes. Meanwhile, Km. Jeevanti came there, who pushed the accused/appellant. The accused/appellant Vijay pounced upon Jeevanti and thrown her from the road. After that she came to her house and narrated the whole incident to her brother. Thereafter her brother and father of Jeevanti went to search Jeevanti. Meanwhile, Jeevanti also reached the house. Next day, her brother and Jeevnati’s father went to lodge the report. She was got medically examined at Haldwani. She stated her age to be 18 years. 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 8 statement of this witness is reliable, believable and inspires confidence. 15. P.W.2 is Km. Jeevanti Devi, who has stated that on 8.8.1995 Deepa, Janki, Ganga and she had gone to take grass in the forest. After taking the grass they were coming back. She was ahead of them. Janki was behind her and behind Janki, Ganga and Deepa were coming. At about 5 PM they reached at Shikare ki Dhar. A truck UHB 5053 was coming from the side of Padampuri, which was driven by accused/appellant Vijay Kumar. Accused/appellant Rajendra Prasad and Suresh Chandra were also in the truck. Accused Vijay Kumar caught Janki and committed rape with her. On hearing the cries of Janki, she reached there. She saw the accused/appellant Vijay Kumar committing rape with Janki. Accused/appellant Rajendra Prasad was also there. She pushed the accused Vijay who then caught her and thrown her. Accused Vijay sat her on her neck. She received the injuries. Thereafter she ran away from the place of occurrence and reached her house. Janki had also reached the house. 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, believable and inspires confidence. 16. P.W.4 is Harish Chandra, complainant of the case. He has reiterated the version of the FIR lodged by him before Patwari Patti Sarna. He has proved the report Ext.Ka-3. 9 17. P.W.5 R.S. Aswal is the Investigating Officer of the case. He has stated that in the year 1995 he was posted as Station Officer at Police Station Mukteshwar. This case was registered at Patti Sarna and the investigation was done by Patti Patwari. Later on the investigation of this case was transferred to Police Station Mukteshwar and then the investigation was done by him. On completion of the investigation, he filed the charge sheet Ext.Ka-4 against the accused/appellants Vijay Kumar and Rajendra Prasad. 18. P.W.6 Bhuvan Chandra Bhandari has stated that on 9.8.1995 he was Patwari of Patti Sarna. On that day, Harish Chandra gave a report Ext.Ka-3 to him at 10:30 AM. On the basis of that report, he prepared the Chik FIR Ext.Ka-5 and also made necessary entries in the G.D., carbon copy of which is Ext.ka-6. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan Ext.Ka-7 of the place of occurrence. On 12.8.1995 he arrested the accused/appellants. On 29.8.1995 the investigation of this case was transferred to regular police and thereafter rest of the investigation was done by regular police. 19. Thereafter, the statements of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 10 20. Sri Deep Chandra Joshi, learned counsel for the appellant no.1 Vijay Kumar has argued that the prosecution could not prove its case against the appellant-accused Vijay Kumar beyond reasonable doubt. I do not find any force in this argument for the reason that P.W.1 Km. Janki Devi, who is the victim of the case, has deposed in her evidence that on the date of incident i.e. on 8.8.1995 at 3 PM, she had gone to cut grass with Ganga, Deepa and Jeevanti. At 5 PM she was coming back after taking the grass. Jeevanti was ahead of her while Gang and Deepa were behind her. When she reached at Shikare ki dhar then a truck UHB 5053, coming from the side of Padampuri, stopped there. Accused/appellant Vijay Kumar, who was the driver of truck, stepped down and thrown the grass from her head. He has thrown her on the road and hold her chest. He committed rape with her and torn her salwar. She tried to save herself but the accused/appellant did not leave her. She further deposed that the accused/appellant Vijay Kumar committed rape with her five minutes. Meanwhile, Km. Jeevanti came there, who pushed the accused/appellant. The accused/appellant Vijay pounced upon Jeevanti and thrown her from the road. After that she came to her house and narrated the whole incident to her brother. Thereafter her brother and father of Jeevanti went to search Jeevanti. Meanwhile, Jeevanti also reached the house. Next day, her brother and Jeevanti’s father went to lodge the report. After that her medical examination was done. The evidence of this witness is reliable, believable and natural and inspires implicit confidence and the same also gets full corroboration from the oral evidence of P.W.2 Km. Jeevanti and 11 P.W.4 Harish Chandra, who too have fully supported the prosecution case in their examination. Apart from above, her evidence further gets full corroboration from the medical report Ex.Ka-1 and supplementary medical report Ex.Ka-2 as well as from the injury report Ext.Ka-8 of Km. Jeevanti. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of the prosecutrix. Thus, from the evidence discussed above the prosecution has fully proved its case against the appellant/accused Vijay Kumar beyond reasonable doubt u/s 376 IPC and the trial court is correct and justified in convicting the appellant/accused as discussed above. I also concur with the view taken by the trial court in convicting the appellant/accused as discussed above. 21. Learned counsel for the accused/appellant Vijay Kumar further argued that the accused/appellant is facing the present case for last 15 years in various courts and he has not committed any crime before and after the said incident. The appellant/accused is now about 40 years old and he is married man and is living with his children and wife who are entirely dependent on him. Hence, it is prayed that a lenient view may be taken for sentence. After considering all the facts and circumstances of the case, I am of the view that it would be in the interest of justice to award sentence of seven years’ R.I. in place of ten years’ R.I. as awarded by the court below. 22. Sri Siddhartha Sah, learned counsel for the appellant no.2 Rajendra Prasad has argued that the prosecution has not proved the case against the 12 appellant-accused Rajendra Prasad beyond reasonable doubt u/s 376 r/w 34 IPC. I find force in the argument of learned counsel for the appellant Rajendra Prasad. Section 34 IPC has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by other in the course of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of the accused person to commit the offence for which he is charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of crime. Under the provisions of Section 34 IPC, the essence of liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. For applying Section 34 IPC it is not necessary to show some overt act on the part of the accused. In the instant case, there is nothing on evidence to show that the appellant Rajendra Prasad shared common intention. A bare reading of the entire evidence of the victim Km. Janki Devi and the witness Km. Jeevanti Devi goes to show that the appellant was not involved in the act of rape. It has nowhere come in the evidence that the appellant Rajendra Prasad participated in the act of 13 above said crime or he help the appellant Vijay Kumar to commit rape with the victim. Mere presence of the appellant Rajendra Prasad at the place of occurrence is not sufficient to prove the offence u/s 376 r/w 34 IPC against him. Therefore, the conviction of the appellant/accused Rajendra Prasad under Section 376 IPC r/w Section 34 IPC is bad in law and cannot be sustained in the eyes of law. 23. For the reasons recorded above, the appeal of appellant no.1 Vijay Kumar is partly allowed. His conviction under Section 376 I.P.C. is maintained. However, the sentence of ten years’ R.I., as directed by the court below, is reduced to seven years R.I. The appellant Vijay Kumar is on bail. His bail bonds stand cancelled. Let him be taken into custody forthwith to serve out the sentence as awarded against him. The period already served out in jail by the appellant-accused Vijay Kumar during investigation, trial or appeal shall be adjusted after being verified from records. 24. The appeal preferred by the appellant no.2 Rajendra Prasad is allowed. His conviction and sentence, as directed by the court below, which has been discussed above, is hereby set aside. He is on bail. He need not surrender unless required in any other case. 25. A copy of this order shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) 25.03.2010 RG