IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.418 of 2001 (Old No.2225 of 1998) 1.Meharban S/o Meer Hasan 2.Imran S/o Hasan Deen Both residents of Dhakrani, Police Station Vikas Nagar, District Dehradun …..Appellants Versus State of Uttar Pradesh (Now State of Uttarakhand) ….Respondent Shri R.P. Nautiyal and Shri Karan Anand, Advocates present for the appellants. Shri Amit Bhatt, A.G.A. present for the State. Dated: 19th April, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C), is directed against the judgment and order dated 17/18.09.1998 passed by the 2nd Additional Sessions Judge, Dehradun in Sessions Trial No.6 of 1997, whereby appellants Meharban & Imran have been convicted under Section 376 (2) (g) read with Section 34 of Indian Penal Code, 1860 (for short I.P.C) and one punishable under Section 3(1) (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and each one of them has been sentenced imprisonment for life and directed to pay a fine of ` 2,000/- under Section 376 (2) (g)/34 I.P.C. and rigorous imprisonment for a period of one year and directed to pay a fine of ` 1,000/- under Section 3(1) 2 (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Heard learned counsel for the parties. 3. The lower court record is reported to have been burnt, in an accidental fire in the Record Room of Civil Court, Dehradun on 07.12.1999. The reconstructed record contains copy of the case diary, which consists gist of the First Information Report, statements given by the witnesses during investigation, copy of the medical report etc. 4. Prosecution story, in brief, is that on 30th December, 1996 at about 3:30 a.m. P.W.1 Rupa, alongwith, her mother P.W.2 Kamla came out of their house situated in village Dhakrani to ease themselves out, when accused/appellants Imran, Meharban & one Islam caught hold of P.W.1 Rupa and took her towards a grove near canal, where she was subjected to rape one by one by the three accused. During the incident of rape, P.W.2 Kamla was threatened with dire consequences on the point of knife. First Information Report of the incident was lodged by P.W.1 Rupa at 6:10 p.m. with Police Station, Vikas Nagar against the three accused, namely, Islam, Meharban and Imran relating to offence punishable under Section 376 I.P.C. and one relating to offence punishable under Section 3(1) (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. On the basis of the said report, Crime no.579 of 1996 was registered at the Police Station and investigation was taken up by P.W.7 Gajendra Pal Singh, Circle Officer. The girl was medically examined by P.W.5 Dr. Asha Gupta on 31.12.1996 at 1:30 p.m. However, no definite opinion about rape could be given by the Medical Officer. After interrogating the witnesses and inspecting the spot, the Investigating Officer appears to have submitted charge sheet against the three accused for their trial in respect of offences punishable under Section 376 (2) (g) I.P.C. and one punishable Section 3(1) (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5. It appears that after giving necessary copies to the accused, the Magistrate committed the case to the Court of Sessions for trial. It further appears that during trial accused Islam absconded and his trial was separated. The trial court framed charge of offences punishable under Section under Section 376 (2) (g) of I.P.C. and one punishable under Section 3(1) (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the accused Imran and Meharban, to which the two accused pleaded not guilty and claimed to be tried. The impugned judgment shows that prosecution got examined P.W.1 Rupa (victim), P.W.2 Kamla (mother of the victim), P.W.3 Amar Kumar, P.W.4 Gulfam (declared hostile), P.W.5 Dr. Asha Gupta, who medically examined the girl, P.W.6 Sub Inspector R.C. Chaudhary and P.W.7. Gajendra Pal Singh, Circle Officer (Investigating Officer). The evidence appears to 4 have been put to the accused under Section 313 Cr.P.C., in reply to which they alleged the same to be false. However, no evidence in defence, was adduced. After hearing the parties, trial court found both the accused Imran and Meharban guilty of charge of offences punishable Section 376 (2) (g)/34 I.P.C. and one punishable under Section 3(1) (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Thereafter, the parties were heard on sentence and each one of the convicts namely (Imran & Meharban) was sentenced to imprisonment for life and directed to pay a fine of ` 2,000/- under Section 376 (2) (g)/34 I.P.C. and rigorous imprisonment for a period of one year and directed to pay fine of ` 1,000/- under Section 3(1) (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Aggrieved by the said judgment and order dated 17.09.1998/ 18.09.1998 this appeal was filed by the convicts before the Allahabad High Court on 24th October, 1998 from where it has been received by transfer under Section 35 of U.P. Reorganization Act, 2000 for its disposal. 6. Before further discussion, we think it just and proper to mention the medical evidence found in the reconstructed record. The medical report shows that Dr. Asha Gupta (P.W.5) could not give any definite opinion about rape. It is also mentioned in the report that vagina of the victim admitted two fingers easily, hymen was found old torn. No P/V bleeding was present. The supplementary medical report in the reconstructed record shows that girl (Rupa) was aged around 16/17 years. Vagina smear report indicated negative for sperms. As such, we found that medical report neither supports prosecution nor supports the accused in the present case. Now, we have to bank on the oral testimony of the victim and her mother, but their statements with cross-examination could not be reconstructed, even after best efforts. In the circumstances, it is difficult to appreciate the oral evidence of the two eyewitnesses at the Appellate stage. 7. Now, we come to First Information Report, copy of which is reconstructed in the record. The copy of the Check Report of the First Information Report shows that the incident had taken place at 3:30 a.m. (morning wee hours) on 30th December, 1996 but the First Information Report was lodged at 18:10 hours (6:10 p.m.) i.e. after 14 hours. The distance between Police Station and the place of incident is about 5 kms. The delay in lodging the First Information Report cannot be said to have been explained sufficiently on the record. 8. Learned counsel for the appellants pointed out that P.W.1 Rupa has nowhere stated as to what was the source of light, in which she could identify the accused. From the impugned judgment, it appears, that in the statement of P.W.2 Kamla (mother of the victim) it has come that there was moon lit at the time of the incident. However, on going through the impugned judgment, we find that P.W.1 Rupa has 6 stated that she and her mother were taken towards canal by the three accused. It is strange and unnatural that to commit rape with the girl, the accused would take her mother also towards the place of incident. 9. Lastly, it is contended on behalf of the appellants that presence of accused, at the time of incident outside the house of victim, is highly doubtful. Having gone through the impugned judgment and other papers (which are reconstructed) we also feel that it is unnatural conduct on the part of the accused to be outside the house of the victim in wee hours (3:30 a.m.) in the month of December, particularly when they had no knowledge that the girl is likely to come out of her house. 10. In the above circumstances, we are of the view that it cannot be said that the charge of offences punishable under Section 376 (2) (g)/34 I.P.C. and one punishable under Section 3(1) (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are proved beyond reasonable doubt against the appellants. Therefore, they are entitled to the benefit of reasonable doubt. 11. Accordingly, the appeal is allowed. The impugned judgment and order dated 17.09.1998/ 18.09.1998 passed by Second Additional Sessions Judge, Dehradun in Sessions Trial No.6 of 1997 is hereby set aside. The accused/appellants Meharban & Imran are acquitted of charge of offences punishable under Section 376 (2) (g)/34 I.P.C. and one punishable under Section 3(1) (xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. One of the appellants, namely, Imran is said to be in jail. Let a copy of this judgment be sent to the Superintendent of Jail concerned, who may set said appellant at liberty forthwith, if he is not wanted in connection with any other crime. Another accused/ appellant Meharban is on bail. He need not surrender. Let copy of this judgment be sent also to the trial court. (V.K. Bist, J.) (Prafulla C. Pant, J.) 19.04.2011 Arpan