HI GH COURT OF UTTARAKHAND, AT NAI NI TAL CRI MI NAL APPEAL NO.2 4 5 of 2 0 0 2 Devi Prasad S/ o Shri Ram Kunwar R/ o village Astal Tehsil Dunda District Uttarkashi ………Appellant Versus State of Uttarakhand ……..Respondent Dat ed :- 0 7 t h May 2 0 0 8 Mr. Umesh Chandra Belwal, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. G.A. for the State. Hon’ble J.C.S. Raw at , J. This criminal appeal has been filed against the judgment and order dated 19.09.2002 passed by the then Special Judge, Uttarkashi in S.T. No.1/ 1999, whereby the appellant was convicted and sentenced to undergo imprisonment of three months and two months under sections 323 IPC and 506 IPC respectively. The sentences were suspended and the appellant was given the benefit of Ist Offenders Act. He was released on his furnishing a personal bond of Rs.5000/ - and two sureties in the like amount by the appellant for maintaining peace and good behaviour for a period of sentence as mentioned above. In default, he was directed to appear before the court to receive the sentence passed against him. 2. The facts, in nutshell, are that on 21.01.1998 at about 6p.m. Smt. Sona Devi PW2 was taking water from the public tap situated in village Astal. Her four years daughter was also with her. The appellant Devi Prasad came from behind and caught hold of Smt. Sona Devi PW2 with bad intention. The appellant grappled her due to which she fell on the ground. The appellant then with an intention to commit forcible sexual intercourse put off her clothes. The appellant also caused injuries on her person. During the incident, her ornaments i.e. nose top and ear-rings were missing. The appellant said to her that “Doomri Aaj Dekhta Hu Tujhe Kaun Bachata Hai”. Her daughter aged about 4 years and the son of Barfi Lal who were also accompanying her went to call for her brother and father respectively. When Vijay Pal PW1, the brother of Sona Devi PW2 reached at the spot the appellant fled away from the place of incident. Vijay Pal PW1 approached the S.D.M., Dunda, who suggested him to lodge the report and to medically examine the injured in the hospital. Thereafter, the injured was medically examined by the doctor and she returned to her house. When the appellant came to know that the injured has come to her house he alongwith other persons came to her house, hurled abuses and threatened her with dire consequences. On the next day i.e. 22.01.1998, a written report was lodged by Vijay Pal PW1 before the Naib Tehsildar, Dunda against the appellant and other persons i.e. Yogendra, Ram Kumar, Smt. Kaushalya, Smt. Munni Devi, Devendra, Smt. Nanda Devi, Km. Maya and Ram Vilaas under sections 323, 504 & 506 IPC. In the meantime, Smt. Sona Devi PW2 was admitted in the civil hospital, Uttarkashi from 25.01.1998 to 29.01.1998. When she was discharged from the hospital she moved an application Ex.Ka.1 before the District Magistrate, Uttarkashi narrating certain other facts and making allegations against the Patwari that he has not properly recorded her report. Thereafter, the case was converted and sections 147 & 354 IPC were also added. The investigation of the case was transferred to the Circle Officer of the regular police. The Circle Officer submitted the chargesheet against the appellant before the court. 3. After submission of chargesheet, the trial court framed the charge against the appellant. The appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined seven witnesses. Vijay Pal PW1 (brother of injured), Smt. Sona Devi PW2-injured and Geeta Lal PW3 are said to be the eye witnesses during the investigation, out of these witnesses, Vijay Pal PW1 and Geeta Lal PW3 were declared hostile by the prosecution as they did not support the prosecution version. Virendra Singh Rawat PW4 is the Patwari posted at Hitanu where the first information report was lodged and he initially conducted the investigation of the case. Brij Mohan Bhatt PW5, Circle Officer took over the investigation from Virendra Singh Rawat PW4. Brij Mohan Bhatt PW5 completed the investigation and submitted the chargesheet against the appellant. Dr. H. S. Airi PW6 is the Medical Officer, who medically examined Smt. Sona Devi-injured on 21.01.1998 at 8pm in the P.H.C. Dunda. B. S. Panwar PW7, Chief Pharmacist, District Hospital, Uttarkashi was produced by the prosecution in order to support the fact that the injured remained admitted in the hospital as patient w.e.f. 25.01.1998 to 29.01.1998 and he also proved the bed-head-ticket of the injured. 5. The appellant was examined u/ s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated in this case due to the enmity with the complainant. He further stated that the witnesses were inimical with him. 6. The appellant has not adduced any documentary or oral evidence in support of his defence. 7. The accused-appellant in the trial eventually was convicted and sentenced by the trial court as mentioned above. 8. I have heard learned counsel for the parties and perused the record carefully. 9. The prosecution has adduced the evidence of Dr. H. S. Airi PW6 Medical Officer, who examined Smt. Sona Devi PW2 on 21.01.1998 at 8pm and found the following injuries on her person: - (i) Bruise on the left eye paricypetal region. Bluish colour. (ii) Abrasion on the left chick size 2.5cm x 2cm. (iii) Lacerated wound ½ cm on the postier left ear labule. (iv) Multiple abrasion on the left hand on posterior surface. (v) Abrasion ½ x 1/ 2cm on the post side of right lobule. (vi) Abrasion on the left knee joint size 1 x 1cm. (vii) Care of pain and tenders on the right calf region 5cm below the right knee joint. (viii) Care of pain and tenderness on the on the right arm in middle of arm. (ix) Bruise on left upper lip red on left side. The medical officer has opined that the injuries were simple in nature and all the injuries were fresh. The Medical Officer has opined that all the injuries could be caused by a blunt object. It was further opined that the injuries could be caused on 21.01.1998 at about 6pm. 10. Now, I have to consider as to whether the appellant is the author of the injuries sustained by Smt. Sona Devi PW2. The case rests upon the direct evidence. The prosecution has adduced the evidence of three eye witnesses of the incident, out of which, Vijay Pal PW1 and Geeta Lal PW3 have not supported the prosecution version and both of them were declared hostile. The evidence of Smt. Sona Devi PW2 remains on record for the support of the prosecution version. 11. Before proceeding further, it is pertinent to mention that it is admitted case of the parties that there is enmity in between the appellant and the injured. Smt. Sona Devi PW2 has admitted in her evidence that a case was filed by the appellant against her mother in the court of C.J.M., Uttarkashi in which a fine of Rs.100/ - was imposed on her mother. It is also admitted in the first information report as well as in the complaint Ex.ka.1 submitted to the District Magistrate that there is enmity in between the parties and due to the enmity the offence was committed by the accused. It is also admitted case of the parties that Vijay Pal PW1, who did not support the prosecution version is the real brother of Smt. Sona Devi PW2. Sona Devi PW2 has admitted in her evidence that a case was filed by Vijay Pal PW1 against her under section 307 IPC. It is also in the evidence that Sona Devi PW2 was living in her parental house for the last so many years and she was not living with her husband Dharam Singh. She has admitted in her evidence that Dharam Singh firstly got married with her elder sister Vimla and thereafter Dharam Singh married with her. After the marriage, Sona Devi PW2 was living in her parental house. She further stated in her evidence that she had good relations with her husband. However, there is a contradiction with regard to the good relations with her husband. Sona Devi PW2 has made a statement before the Investigating Officer that since she had some disputes with her husband, hence she was living separately from her husband. When she was examined in the court she has stated that she had good relations with her husband. 12. Sona Devi PW2 (injured) has stated in her evidence that on 21.01.1998 at about 6pm she was taking water from a public tap. The sole appellant came from behind and started assaulting her with kicks and fists. During the course of melee, she sustained injuries on her person. Her clothes were also torn and her ornaments which she was wearing on her nose and ear fell down on the ground. Her daughter aged about 4 years who was accompanying her called her brother from the house. Thereafter, she was taken to her house where she narrated the incident to her relatives. She has further stated in her evidence that Vijay Pal PW1, Geeta Lal PW3 and the son of Barfi Lal were present at the time of incident and they saw the entire incident. The name of Geeta Lal PW3 has not been indicated either in the FIR lodged before the Naib Tehsildar or in the complaint Ex.ka.1 submitted before the District Magistrate. A written report was filed before the Naib Tehsildar against nine persons namely, Devi Prasad (appellant), Yogendra, Ram Kumar, Smt. Kaushalya, Smt. Munni Devi, Devendra, Smt. Nanda Devi, Km. Maya and Ram Vilas alleging therein that on 21.01.1998 at about 6pm when she was taking water from a public tap the accused appellant came there and with an ill-intention tried to assault her. In the scuffle, her clothes were torn and the blood was oozing from her mouth. It was further alleged in the report submitted to the Naib Tehsildar that co-accused Yogendra and Ram Kumar caught hold of her and the appellant caused injuries on her person. So far as the complaint Ex.ka.1 submitted before the District Magistrate is concerned, it gives a totally different version. There are different versions in the report submitted to the Naib Tehsildar, compliant submitted before the District Magistrate and the evidence of Sona Devi PW2. There are significant discrepancies at different stages with regard to the participation of the appellant alongwith other accused persons. The manner of incident as indicated in the evidence of Sona Devi PW2 is totally different from the averments made in the report lodged before the Naib Tehsildar. When Sona Devi PW2 moved an application Ex.ka.1 to the District Magistrate she has stated that on 21.01.1998 she was taking water from a public tap alongwith her daughter aged about 4 years the appellant came from behind and caught her breast. Thereafter, with the intention to commit forcible sexual intercourse he made her fell down. When she fell down on the ground her ornaments were taken away by the appellant without her consent. The appellant said her “Doomri”. She has also averred in the application that the appellant put off her ‘Dhoti’ & ‘Peticoat’ and she was made nude. Thereafter, she was beaten by the appellant due to which she became unconscious. The son of Barfi Lal called his father at the spot and her daughter also called her uncle Vijay Pal PW1 at the spot. When the accused saw them he fled away from the place of incident and took away her ornaments. Thus, perusal of this application it is evident that the participation of other accused has been washed away. The evidence of the victim, the report submitted to the Naib Tehsildar and the application submitted to the District Magistrate provide different version at different stages. Now, the question arises as to whether the testimony of the victim should be accepted without corroboration or not. In view of the above, her testimony cannot be relied upon. 13. For the purpose of corroboration of the evidence of victim, I would like to see the evidence of the other witnesses. Perusal of the record reveals that Vijay Pal PW1 and Geeta Lal PW3 who were claimed to be the eye-witnesses of the incident have been declared hostile and they had not supported the prosecution version. There are doubts as to whether Geeta Lal PW3 was the eye witness of the incident or not. His name was not found place prior to the evidence of Sona Devi PW2. Geeta Lal PW3 was produced before the court and he did not support the prosecution version. 14. Now, the corroboration may be made by the son of Barfi Lal who has not been produced before the court. He was cited as a witness in the chargesheet and his age has been shown as 13 years. His evidence has been suppressed by the prosecution. It is well settled position of law that if a fact has been proved by the eye witness the necessity to prove this fact by other witness is not required, but if the evidence adduced by the prosecution is not so believable and if it requires the corroboration the non-production of the witness would be fatal to the prosecution. 15. Learned Amicus Curiae for the appellant tried to emphasize that Sona Devi PW2 has stated that she remained admitted in the hospital. Dr. H. S. Airi PW6, Medical Officer medically examined her and found the injuries on her person as indicated in the preceding para. There is no iota of evidence that she was required to be admitted in the hospital on the date when she was medically examined by the doctor. She has stated in her evidence that she was admitted in the hospital on 22.01.1998. As a matter of fact, she remained admitted in the civil hospital, Uttarkashi w.e.f. 25.01.1998 to 29.01.1998. This fact has been proved by B. S. Panwar PW7 that the injured was admitted by Dr. Y. S. Rana in the hospital. The bed head ticket was also produced before him. It is evident from the record that she was admitted from 25.01.1998 to 29.01.1998. He has categorically stated that the patient was not referred to by the P.H.C. for admission. Though, there is mention that it is a medico legal case. Merely admitting the injured in the hospital on the whims and fancies either by the doctor or by the patient does not help to the prosecution case. It is also in the evidence that while remaining admitted in the hospital she went to her house to perform a ‘Pooja’ and one day’s leave was granted to her. On 29.01.1998 she was discharged from the hospital. Thus, it is evident from the record that she was not badly injured and she was not required to be admitted in the hospital. 16. Considering the above, the discrepancies as pointed out and the enmity between the parties, I am of view that it would not be safe to convict the appellant. The evidence of the victim has not been corroborated. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting and sentencing the appellant. Hence, the appeal is allowed and the conviction and sentence against the appellant awarded by the trial court are set aside. The appellant is acquitted from the charge levelled against him. The personal bond and two sureties furnished by the appellant before the court below are discharged. 17. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months. Dated 07.05.2008 LSR ( J.C.S. RAW AT, J.)