IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.02 OF 2005 Sunil S/o Om Prakash, R/o Village Bhakli, Patwari Kshetra Kingorikhar, District Pauri Garhwal ……… Appellant Versus The State ……… Respondent Dated: September 14, 2009 Sri M.S. Pal Sr. Adv. assisted by Sri C.S. Dumka, Adv. 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 03.01.2005 passed by Sessions Judge, Almora in Sessions Trial No.02 of 2004, State Vs. Sunil, 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 sentenced him to one year’s rigorous imprisonment with fine of Rs.5,000/- and in default, three months’ extra R.I. was awarded. However, the appellant-accused was acquitted for the offence punishable u/s 376 IPC. 2. I have heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that on 27.2.2002, P.W.2 Jhabru Ram lodged an FIR with the Patti Patwari Jhimar, Patti Malla Salt, Distt. Almora with the averments that the appellant-accused Sunil behaved indecently with his daughter (Km. Suvari) and the appellant-accused was also threatening her to life. This FIR was received by the concerned Patwari on 2.3.2002, the FIR is Ex.Ka-1. When no action was taken on that FIR, P.W.2 Jhabru Ram lodged another typed application to SDM, Bhikiyasen with the allegations that the appellant-accused Sunil and one Puran Singh came at his house on 15.1.2002 and enquired about him from his daughter, who was alone in the house. Thereafter, the appellant-accused Sunil and his companion Puran came to the complainant and talked him for the sale and purchase of hens. Thereafter, both of them went back at the complainant’s house. On the same day at about 6 P.M., appellant-accused Sunil committed rape with the complainant’s daughter while the second person Puran was also involved in the same conspiracy, however he did not commit rape. The complainant’s daughter informed him about the said incident on the same day. Thereafter, the complainant discussed this matter with the villagers. On the next day he went at the village of appellant-accused and after that he had gone to the Patwari of the area. When no action was taken by the Patwari, then he moved the present application on 6.3.2002, that application is Ex.Ka-2. On this application, SDM Bhikiyasen directed the Naib Tehsildar to register the FIR and take action according to law. 3 After that Naib Tehsildar directed the Supervisor Kanungo, Salt to investigate the crime after registering the FIR, on the basis of which Supervisor Kanungo, Salt prepared the Chik FIR on 8.3.2002 at 12 P.M., i.e. Ex.Ka-5. Later on the investigation was transferred to Naib Tehsildar by the order of District Magistrate. (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). The I.O. during investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. Victim Km. Suwari was medically been examined on 11.3.2002 at 11:05 A.M. by P.W.3 Dr. Meenakshi Joshi and prepared the medical reports, i.e. Ex.Ka-3 and supplementary medical report Ex.Ka.4. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/ accused in the court, i.e. Ex.Ka-7. 4. After receiving the charge sheet, learned CJM, Almora committed the case to the court of Sessions on 06.01.2004 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. Learned Sessions Judge, Almora has framed the charge against the appellant/accused Sunil u/s 376 IPC. The charge was read over and explained to appellant/accused, who pleaded not guilty and claimed to be tried. 4 6. To prove its case, the prosecution has examined P.W.1 Km. Suwari, victim, P.W.2 Jhabru Ram, complainant, P.W.3 Dr. Meenakshi Joshi, who medically examined the victim, P.W.4 Jai Kishan Lakchaura, Kanungo/IO and P.W.5 Naib Tehsildar Kushal Singh, also IO of the case. 7. After that the statements 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. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Almora vide judgment and order dated 03.01.2005 convicted and sentenced the appellant/ accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that the victim Km. Suari was medically been examined on 11.3.2002 at 11:05 A.M. by P.W.3 Dr. Meenakshi Joshi and prepared the medical report (Ex.Ka-3). The medical officer on the person of victim found as under: - “External Examination- Sec. sexual hair developing. No mark of injury on external genitalia 5 Internal Examination- Hymen old torn healed. Vagina admits 1 finger. Examination Advised- X-ray right knee/elbow/wrist Vaginal Smear-M/G for spermatozoa. Received four slides gonococci. Prov Report- No definite evidence of rape can be given.” On 19.3.2002, P.W.3 Dr. Meenakshi Joshi also prepared the supplementary report Ex.Ka-4 and found as under:- Radiological Opinion- Radiologically patient’s age is about 17-18 years. Final Report- On the basis of external and internal examination, vaginal smear report, no definite evidence of rape is found. Radiological age is about 17-18 years. 10. To prove the above-medical report, the prosecution has examined P.W.3 Dr. Meenakshi Joshi who stated that on 11.3.2002 she had medically examined the victim Km. Suwari. After the examination, she prepared the medical report i.e. Ex.Ka-3. On 19.3.2002 on the basis of Pathology and X-ray report, she prepared the supplementary report, i.e. Ex.Ka-4. She further stated that on the basis of x- ray report, the age of victim is about 17-18 years and as per the Pathological Report, no spermatozoa was found. Hence, about the rape, no opinion is possible. In cross-examination, she stated that on the basis of 6 the Pathology Report, she had not found any sign of rape on the person of victim. 11. To further prove its case, the prosecution has examined P.W.1 Km. Suwari, victim of the case, who stated that on the date and time of incident, she was alone at her house. Appellant-accused Sunil and one another person Puran Singh had come at her house. Puran Singh was not known to her before the incident and name of Puran Singh was disclosed to her by her friend Nilam on the next day when she went to school. Both of them enquired her about her father. She further stated that the appellant-accused Sunil committed rape with her. She narrated the incident to her father on the same day after his arrival. After 2-4 days of the said incident, she was medically been examined. In cross-examination, she stated that around her house, about 20-25 houses were situated and all the persons living there were present. She further stated that she had not given the statement u/s 161 Cr.P.C. to the Patwari that the appellant-accused had gone from her house after enquiring about the hens. She further stated that on the next day of the incident, she had gone to the school and her father had gone somewhere out. The distance of Patwari Headquarters from her house is about 3-3½ kilometers. She further stated that Maindoli hospital is at a distance of about two hours journey from her house while Manila Hospital is at a distance of about half an hour journey from her house. After 3-4 days of the incident, she had gone to Ranikhet Hospital for medical examination. She further stated that at the time of 7 incident, there dark on the place of occurrence and she had told her father that the appellant- accused had behaved indecently with her. 12. P.W.2 Jhabru Ram, complainant of the case, has stated that on the date of incident, he had gone in the house of Mangal Sen. At about 6 P.M., appellant- accused Sunil and one Puran came and talked for the purchase of hens. After he refused them, both of them gone towards his house. At that time his daughter was at her home. After half an hour, he also went to his house. Then his daughter informed him about the said incident. On the next day, he had gone in the house of Sunil for complaint and made a complainant to the mother of appellant-accused Sunil. Thereafter he had gone to the Patwari, however he could not find the Patwari. Again he had gone for Patwari after 2-3 days when the Patwari met him. Then he had given the report scribed by someone, i.e. Ex.Ka-1. When the Patwari did not take any action, he lodged a typed copy of the report to SDM, Bhikiyasen, i.e. Ex.Ka-2. His daughter was got medically examined by the Supervisor Kanungo. In cross-examination he stated that he lodged the report with the Patwari after 4 days of the incident, i.e. Ex.Ka-1. He further stated that the Patwari Headquarter is about 2 kilometers from his house. Kanungo Headquarter is about a distance of one-hour journey from the Patwari Headquarter. After 15 days of the incident, Kanungo along with the Patwari came to his house for the enquiry. His daughter was medically been examined after about 15-16 days of the incident which was done in the Ranikhet Govt. Hospital. 8 Mangal Ram, Suresh Ram and Jhabbi Ram are his neighbourers. 13. P.W.4 Jai Krishan Lakchaura, Kanungo/IO of the case stated that on 8.3.2002, he was posted as In- charge Kanungo. On the basis of order of Naib Tehsildar, he received an application on the basis of which he prepared Chik FIR, i.e. Ex.Ka-5 and investigation was started by him. He recorded the statements of witnesses and prepared the site plan of the place of occurrence, i.e. Ex.Ka-6. Victim Km. Suwari was medically been examined in the Civil Hospital Ranikhet. After that the investigation was transferred to Naib Tehsildar, Bhikiyasen. 14. P.W.5 Kushal Singh, Naib Tehsildar/also IO of the case, has stated that on 26.5.2008 investigation of this case was entrusted to him. During investigation, he recorded the statements of witnesses and on completing the investigation; he filed the charge sheet against the appellant-accused, i.e. Ex.Ka-7. 15. After that the statements 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. 16. Sri M.S. Pal, learned senior counsel for the appellant-accused argued that as per the evidence discussed above, the case is not proved against the appellant-accused beyond reasonable doubt for the offence punishable u/s 354 IPC. I find substance in the 9 argument put forth by counsel for the appellant- accused for the following reasons: - A. That the second FIR Ex.Ka-2, on the basis of which the Chik FIR was prepared and investigation was conducted, that was not believed by the trial court and even the trial court has not found the offence punishable u/s 376 IPC against the appellant-accused. The State has also not filed any appeal against the judgment and order of the trial court acquitting the appellant-accused u/s 376 IPC, therefore, the judgment and order passed by trial court to this extent attained finality. B. That the first FIR was lodged by P.W.2 Jhabru Ram on 27.2.2002 while the said incident said to be taken place on 15.1.2002 at about 6 P.M. Thus there is delay of about 46 days in lodging the FIR, however no satisfactory explanation has been produced by the prosecution with regard to the delay, which is fatal for the prosecution case and the same throws a reasonable doubt on the prosecution story. Reliance is placed on a judgment rendered by the Hon’ble Supreme Court in the case of State of Karnataka v. Mapilla P.P. Soopi reported in (2003) 8 SCC 202. Para-4 of the said judgment is relevant to mention here, which is as follows: - “Undue delay in lodging the complaint without acceptable evidence has also 10 contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal.” C. That as per the prosecution story, the incident was explained by the victim to her father on the same day after half an hour on his arrival at the house. However, the father of victim had not complained about the incident to anyone for 46 days. This conduct of the complainant shows that the incident had not happened in the manner as stated by the prosecution. D. That in the FIR Ex.Ka-1, which was lodged on the information of the victim to her father, only it was stated that some indecent behavior was committed by the appellant-accused. But what was that indecent behavior, that has not been stated in the FIR and even that has not explained in the prosecution evidence before the trial court. Besides there is no specific evidence given by the victim who is the only sole eyewitness of the said incident that her modesty was outraged by the appellant- accused. Whatever she has stated is that she was raped by the appellant-accused but that story was not believed by the trial court. Therefore, the entire prosecution story stands vitiated. E. That the victim Km. Suwari has stated that after about 2-4 days of the incident, she was medically been examined at Govt. Hospital 11 Ranikhet but as per the prosecution story, she was medically been examined on 11.3.2002 which means after about two months of the incident. If the victim was medically been examined after 2-4 days, then her medical certificate ought to have been filed before the trial court, which has not been done in the present case, which further goes to lay doubt on the prosecution story. F. That the victim has stated that on the next date of incident, she had gone to the school and her father had gone outside somewhere. This conduct does not seem natural and trustworthy and it goes to show that the incident had not happened in such a manner as stated by the prosecution. G. That the victim has also stated that at the time of incident, there was dark on the place of occurrence and no source of light was there and for that reason also, identification of the appellant-accused becomes doubtful. H. That the victim further stated that near to her house, about 20-25 houses were situated and all the persons residing in those houses were present at that time. However, none of them was examined by the prosecution, which further weakens the prosecution case. I. That the complainant Jhabru Ram (P.W.2) stated that FIR was lodged by him after 2-4 12 days of the incident but this statement got itself falsified from the report which was lodged on 27.2.2002 and received by the Patwari on 2.3.2002, though the incident is said to be happened on 15.1.2002. Besides Jhabru Ram further stated that Patwari Headquarter is at a distance of two kilometers from his house and Kanungo Headquarter is at a distance of one hour journey from the Patwari Headquarter. However, the P.W.2 Jhabru Ram had not chosen to got at Kanungo Headquarter, which also shows that he had not made any efforts to make complaint to the Kanungo before lodging the FIR to the Patwari. J. The complainant Jhabru Ram has also stated that Kanungo along with the Patwari had come in his house after 15 days of the said incident. It does not seem probable and justified for the investigation as the report was lodged on 8.3.2002 and the Kanungo also started the investigation on the same day i.e on 8.3.2002, then the I.O. would inspect the place of occurrence after such a long period. This fact also creates a reasonable doubt about the veracity of the testimony of P.W.2 Jhabru Ram and it creates a serious doubt about his veracity of testimony. 17. Thus, from the evidence discussed above and as per the arguments advanced by learned counsel for the appellant, the prosecution has failed to prove its 13 case against the appellant/accused beyond reasonable doubt and I do not concur the view taken by the trial court in convicting and sentencing the appellant/ accused as discussed above. Therefore, the appellant is liable to be acquitted. 18. Consequently, the appeal stands allowed. The judgment and order dated 03.01.2005 passed by Sessions Judge, Almora in S.T. No.02/2004, State Vs. Sunil, convicting and sentencing the appellant/accused as discussed above, is hereby set aside. The appellant is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. 19. Let the record be sent back. (Dharam Veer, J.) September 14, 2009 Rajeev Dang