HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII, Rule 32(2)(b) Description of the Case. Crl. Appeal No. 2037 of 2001 (Old No. 647/1988) Kala alias Sanjeev and another …Appellant Vs. The State. …Respondent A.F.R. (Approved for Reporting) Not approved for Reporting Date of Decision 19th March, 2008 Initial of Judge. ----------------------- Reserved Judgment HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 2037 of 2001 (Old No. 647 of 1988) 1. Kala alias Sanjeev S/o Sri Preetam r/o House no. 100, Indresh Nagar P.S. Kotwali, District Dehradun, 2. Vijay Kumar S/o Sri Shiya Nand alias Shiya Ram, R/o House no. 142, Indresh Nagar, P.S. Kotwali, District Dehradun-----Accused/appellants. Versus The State ------ Respondent Sri Lokendra Dobhal, learned counsel for the appellants. Sri Harish Pujari, learned Addl. Govt. Advocate for the State Dated: March 19, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1972 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 19th February 1988 passed by the II Additional Sessions Judge, Dehradun in Sessions Trial no. 86 of 1987 State vs. Kala alias Sanjeev and others whereby the learned II Addl. Sessions Judge has convicted the appellants/accused persons Kala alias Sanjeev and Vijay and sentenced each of them to undergo ten years’ rigorous imprisonment for the offence punishable u/s 376 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.). By the very judgment and order the learned II Addl. Sessions Judge, Dehradun has also come to the conclusion that the offence punishable u/s 376 I.P.C. is not proved against the co-accused, namely, Pappa and Om Prakash, therefore he acquitted both the accused persons Pappa and Om Prakash from the charges levelled against them. 2. The prosecution case, in brief, is this that on 13.03.1985 P.W. 1 Km. Sunita @ Pappi, the victim had gone to Shivaji Dharmshala, Saharanpur Road Dehradun for participating in the marriage ceremony of her female friend Neelkamal. Her brother was with her and they had taken a meal there. When the victim was washing her hands after taking meal, at about 12:30 a.m. a little girl had told her that someone is calling her outside. The victim came outside the Dharmshala where the accused/appellant Kala S/o Preetam residing of Indresh Nagar met with her and told that mother of the victim is ailing and her mother has called her at home. Thus, the victim had departed to her home. But at a little ahead on the way the accused Kala had closed her mouth and within no moments other three accused persons Pappa S/o Prakash, Om Prakash S/o Mewa Lal and Vijay S/o Siya Ram residents of Indresh Nagar also reached there and they took her dragging and threatening towards right side of a dirty culvert in a straw store where she was forcefully laid down. Thereafter the accused Kala after breaking string of her trousers had forcefully committed rape on her. Thereafter, the accused Vijay and then Pappa and thereafter Om Prakash had committed rape on her. She made shrieks and on hearing her shrieks the labourers of the straw store and others reached on the place of occurrence and on being challenged by the labourers to caught hold of the accused persons, all the four accused persons ran away from the scene leaving behind her. She came to her house but on account of fear and shyness she could not tell anything to anybody. On 15.03.1985 i.e. the date of lodging the report the accused Vijay had inquired from P.W.3 Naresh Kumar, her uncle’s son, if Pappi, the victim has lodged any report? Then P.W.3 Naresh Kumar and her mother inquired her and she has narrated the incident occurred on 13.03.1985. It is alleged in the written report that rape was committed upon her by the above four accused at about 1:30 a.m. Ultimately, the complainant P.W.1 Km. Sunita accompanied with her brother Naresh came to the Police Station Kotwali, Dehradun and lodged the First Information Report Ext. Ka-1 in the Police Station. On the basis of the written report the Chik First Information Report Ext. Ka-6 was prepared by Constable Rajendra Singh Rawat in the Police Station on 15.03.1985 at 3:05 p.m. The distance of the place of occurrence is shown about 3 kms. from the Police Station. An entry was made in the General Diary, a copy of the G.D. is Ext. Ka-7 on the record. 3. Km. Sunita, the victim was medically examined firstly, by P.W.7 Dr. B.S. Butaula on 15.03.1985 at about 3:15 p.m. at Govt. Hospital, Dehradun and the Medical Officer prepared an injury report is Ext. Ka-10 on record. Km. Sunita, the victim, was further medically examined by P.W.6 Dr. Geeta Madhuwal on 15.03.1985 at about 6:05 p.m. at female hospital, Dehradun who prepared an injury report is Ext. Ka-8 on record. On the basis of laboratory report and X-Ray report P.W.6 Dr. Geeta Madhuwal, Medical Officer has also prepared a supplementary report Ext. Ka-9. 4. The investigation of the case was entrusted to P.W. 4 S.I. R.S. Tomar-, Investigating Officer who during the investigation arrested the accused/appellant Vijay Kumar on 15.03.1985 at about 5:20 p.m. and kept him under custody. An entry in this regard was made in the G.D. a copy of which is Ext. Ka-5 on the record. during the course of the investigation the Investigation Officer recorded statements of the witnesses and prepared a site-plan of the place of occurrence, which is Ext. Ka-3 on the record. The I.O. in the presence of Jagdamba Prasad and Adarsh Kumar has also taken in his possession the trousers, skirt and underwear of the victim, which the victim has wore at the time of the occurrence, and kept them in sealed, a recovery memo was also prepared, which is Ext. Ka-2. The Investigating Officer after completing the investigation, has filed charge sheet on 15.05.1985 against the accused Kala @ Sanjeev, Pappa, Om Prakash and Vijay for the offence punishable u/s 376 I.P.C. The charge sheet is Ext. Ka-4 on the record. 5. Learned Chief Judicial Magistrate, Dehradun on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 10.07.1987 u/s 209 Cr.P.C. 6. Learned III Addl. Sessions Judge, Dehradun after hearing the parties on 17.08.1987 framed the charge of offence punishable u/s 376 I.P.C. against the accused persons Kala @ Sanjeev, Pappa, Om Prakash and Vijay. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 7. After the charge was framed, the case was transferred to the Court of II Addl. Sessions Judge, Dehradun on 29.10.1987 vide order of the Sessions Judge, Dehradun for hearing and disposal. 8. The prosecution, to prove its case, has examined P.W. 1 Km. Sunita Rani, the victim and the complainant, P.W. 2 Sharda Rawat, mother of the victim, P.W. 3 Naresh Kumar, to whom the accused Vijay on 15.03.1985 first of all has inquired about lodging of any report, P.W. 4 S.I. Rajendra Singh Tomar, Investigating Officer, P.W. 5 Constable Rajendra Singh, who prepared the Chik report, P.W. 6 Dr. Geeta Madhuwal, Medical Officer, Female Hospital, Dehradun and P.W. 7 Dr. B.S. Butaula, Medical Officer Govt. Hospital, Dehradun. 9. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. It is stated that before the incident Naresh quarreled to them. The accused persons did not produce any oral or documentary evidence in their defence. 10. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned II Addl. Sessions Judge, Dehradun vide impugned judgment and order dated 19th Feb. 1988 has convicted the accused/appellants Kala alias Sanjeev and Vijay and sentenced each of them to undergo ten years’ rigorous imprisonment for the offence punishable u/s 376 I.P.C. Aggrieved with the impugned judgment and order dated 19th Feb. 1988, the present accused/appellants have come up in the instant Criminal Appeal. 11. By the very judgment and order the learned II Addl. Sessions Judge, Dehradun has also come to the conclusion that the offence punishable u/s 376 I.P.C. is not proved against the co-accused, namely, Pappa and Om Prakash, therefore he acquitted both the accused persons Pappa and Om Prakash from the charges levelled against them. 12. I have heard Sri Lokendra Dobhal, learned counsel for the accused/appellant and Sri Harish Pujari, learned Addl. Govt. Advocate for the State. 13. Before further discussions, it is pertinent to mention the injuries found in the person of the victim Km. Sunita. Km. Sunita, the victim was medically examined firstly, by P.W.7 Dr. B.S. Butaula on 15.03.1985 at about 3:15 p.m. at Govt. Hospital, Dehradun. The injury report is Ext. Ka-10 on record. The following injuries were found on her person:- 1. Bruise 12cm. x 5cm. on the right side of face. Colour reddish blue, 2. Abrasion 1cm. x 1.5cm. on the inner side of lower lip, 2.0 cm. from the right angle of mouth, 3. Bruise 8cm. x 4cm. on the right side of cheek. Colour reddish, 4. Complaining of pain in the head. The doctor has opined that all the injuries were simple, fresh and caused by some blunt object. 14. Km. Sunita, the victim, was further medically examined by P.W.6 Dr. Geeta Madhuwal on 15.03.1985 at about 6:05 p.m. at female hospital, Dehradun. The injury report is Ext. Ka-8 on record. On being examined externally height of the victim was found 4’9”, weigh was 38 Kg., teeth were 7+7 space for 3rd molar present and 7+7 space of 3rd molar present, breast was developed, public hair and auxiliary hair were present. On physical examination the following injuries were found on her person:- 1. Small bruise injury on the right cheek at the angle of the mandible and the angle of the right eye. Of size 1” by 1/10 of an inch; 2. 1½” by 1/10th of an inch; 3. 1” by 2/10 of an inch; 4. ½” by ¼” (near the eye) bruise is reddish in colour. 15. On internal examination P/v Hymen torn old healed tear. Vagina admits two fingers easily. Vaginal smear was taken and sent for his to pathological examination. Congestion in vaginal mucosa seen. Otherwise no injury seen in private parts or any other part of body. Ut size could not be made out as the patient was not co-operating. Bleeding from OS seen, therefore the girlish menstruating. 16. On the basis of laboratory report and X-Ray report P.W.6 Dr. Geeta Madhuwal. M.O. has also prepared a supplementary report Ext. Ka-9 and has opined as follows:- Vaginal Smear Report: No sperm seen, No gonococci seen, X-Ray report:- All the epiphyses around the elbow knee and ankle joints are fused. Except upper end of fibula which is partially fused. Epiphyses lower end of radius ulna not fused. All the carpal bones are present. According to the opinion of the doctor no definite opinion about rape can be given but she is used to sexual intercourse and the age of the girl is above 16 yrs. and below 18 yrs. 17. The prosecution to prove its case, first of all, has examined P.W.1 Km. Sunita Rani, the prosecutrix and complainant. Statements of this witness were recorded in the Court on 26.11.1987. This witness has stated that on 13.03.1985 she had gone to Shivaji Dharmshala, Dehradun in the marriage ceremony of her female fried from her home. In that night at 12:30 a.m. after taking her meal when she was washing her hands, then a little girl came to her and told to her that someone is calling her outside. According to the call; she came outside at the gate of Dharmshala where the accused Kala met with her whose name and face cut were already known to her, because he resides to her area. The accused Kala told her that her mother’s health is not good, therefore she departed along on foot towards her house which is situated nearby. When she marched only to 10-15 steps ahead the accused Kala had closed her mouth and suddenly the three other accused persons Vijay, Pappa and Prakash had reached there. The accused Vijay was already known to her who plies three-wheeler and about the identity of two other persons she did not aware. All the four accused persons, namely, Kala, Papa, Prakash and Vijay dragging her took her towards the dirty culvert and then they took her in a straw store which is located right side of the dirty culvert. She attempted to get rid of them, but she failed. The accused Vijay had slapped her. In order to rescue her and in the process of scramble, her clothes were torn. There was a room in the straw store, which was opened and none was there in the room. All the four accused forcefully laid her down in the room and the accused Kala had loosened her trousers and removed her underwear and then Kala had committed rape on her against her whishes. Then accused Vijay had committed rape on her against her wishes. She made screams but nobody came to rescue her. On account of the rape committed by both the accused persons she felt some unconsciousness. Then the accused Pappa and at the last the accused Prakash have committed rape on her against her wishes. She has further stated that she cried again and on hearing her cries the labourers of the straw store reached there and on being challenged by the labourers to caught hold of the accused persons, all the four accused persons ran away from the scene leaving behind her. Then she was all alone. She came to her home along. She wore the clothes again which were torn by the accused persons. Blood was coming out from the vagina, after the accused persons committed rape on her. She waited for a night and being afraid of she did disclose anything to anyone, because the accused persons had given threats to her. On 14.03.1985 she could not go to her college as her health was not good. On 15.03.1985 the accused Vijay had inquired from her brother Naresh Kumar if she has lodged any report against him. When her mother asked to her then she narrated whole of the incident happened in the night of 13.03.1985. Then she wrote the report Ext. Ka-1 herself which is in her own handwriting and submitted the same in the Police Station accompanied with her brother. She was medically examined on 15.03.1985 at female hospital and Doon Hospital. Her one suit and underwear were taken by the police in their custody on 16.03.1985 and recovery memo in this regard was prepared and she made signature on it which is Ext. Ka-2 on the record. This witness has been cross examined by the defence counsel at length; but nothing has come out in her cross examination which may create doubt in her statements. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 18. P.W.2 is Smt. Sharda Rawat, mother of the victim who was examined in the Court on 27.11.1987. This witness has deposed that on 13.03.1985 her son Manoj and her daughter had gone to Shivaji Dharmshala in the marriage ceremony of the female friend of her daughter. The marriage was in the night. Her son Manoj had returned from the marriage at about 12:30 a.m. She asked him where in Sunita now? On this he told that Sunita would return after completion of the marriage as her female friend had detained her there. Thereafter she and her son had slept. Her daughter had returned at night at about 3-3½ a.m. but she did not disclosed anything at night. Even on 14.03.1985 she did not tell anything. On 15.03.1985 the accused Vijay met with her nephew Naresh and inquired from Naresh if Sunita had lodged any report against him? Thereafter her nephew came to her house and asked that had Sunita narrated any incident. Then she inquired from Sunita if any incident had taken place with her? On being inquired Sunita started weeping and told that after taking meal when she was washing her hands at the moment a little girl had called her. Simultaneously, the accused Kala told her daughter that health of her mother is not proper and after listening this; her daughter had departed. Sunita had told that the accused Kala had closed her mouth and thereafter the associates of the accused, namely, Pappa, Om Prakash and Vijay dragging her daughter took her towards a straw store where all the four accused had committed rape on her daughter against her wishes. Her daughter had also told to her that the accused person had threatened her not to disclose about the incident. She told her daughter to lodge a report. Then her daughter wrote the report and lodged the same in the Police Station. The Sub Inspector had inquired from her and her daughter also and took in his possession clothing of her daughter. This witness was also cross examined at length by the defence counsel but nothing has come out in her evidence which may create doubt in her Statements. The evidence of this witness is reliable, believable and trustworthy. 19. P.W.3, is Naresh Kumar who has stated that he and the family of Km. Sunita are related in family terms. After the death of her father his family members are look after her family. On 15.03.1985 at about 12:30 p.m. the accused Vijay met with him at Saharanpur Chowk and asked him if his sister has lodged any report with the police? On this; when he asked the accused that what had happened, then the accused Vijay replied that nothing had happened. Thereafter he had gone to the home of her aunty Sharda and in isolation he disclosed the talks which taken place between him and accused Vijay. Thereafter he and his aunty had inquired from Sunita who narrated that on 13.03.1985 at the night she had gone to Shivaji Dharmshala; her brother Manoj was with her. Km. Sunita had told that she was detained by her friend till the completion of marriage, therefore she send her brother back home. Sunita has further disclosed that after taking her meal when she was washing her hands at that moment one girl had informed her that someone is calling her outside. Km. Sunita came outside where the accused Kala met wither who asked that health of her mother is not good. According to Sunita, after listening unhealthy condition of her mother she departed for her house. Suddenly the accused Kala had closed her mouth and the three remaining accused persons, namely, Pappa, Vijay and Om Prakash also reached there and capturing her they took her in the straw store where they committed rape on her against her wishes. Km. Sunita on 15.03.1985 had lodged a written report in the Police Station and he was accompanied with her. Km. Sunita was medically examined at Doon hospital. 20. P.W.-4 is S.I. Rajendra Singh Tomar-Investigating Officer who has stated that on 15.03.1985 he was posted in the Kotwali, Dehradun as II Officer. The Investigation of this case was entrusted to him and during the course of investigation he recorded the statements of the prosecutrix Km. Sunita, Naresh Chandra and Sharda besides recording statements of other witnesses. He had also taken into possession the clothing of Km. Sunita and prepared a recovery memo Ext. Ka-2 which was signed by him and the witnesses. The I.O. during the investigation, after making spot inspection, has prepared a site-plan of the place of occurrence, which is on his own handwriting. That site plan is Ext. Ka-3 on the record. The victim was sent for medical examination. After completing the investigation, he filed charge sheet against the accused persons Kala alias Sanjeev, Pappa, Om Prakash and Vijay on 15.05.1985 which is Ext. Ka-4 on the record. He arrested the accused Vijay and entry in this regard was made in the G.D. a coy of which is Ext. Ka-5. 21. P.W.5 is the Constable Rajendra Singh who has stated that on 15.03.1985 he was posted in the Kotwali. On that day on the basis of written report Ext. Ka-1 he prepared a Chik report Ext. Ka-6 which is on his hand writing. An entry was also made in the G.D., a copy of which is Ext. Ka-7 on the record. 22. P.W.6 is Dr. Geeta madhuwal, Medical Officer who has stated that on 15.03.1985 she was posted in Female Hospital, Dehradun. On that day at about 6:05 p.m. she medically examined Km. Sunita D/o B.S. Rawat r/o 16-A, Khadri Mohalla, Dehradun who was brought by Constable 317 Ram Narayan, P.S. Kotwali. Brother of the victim Naresh Kumar was with her. On being examined the victim internally and externally she prepared medical report Ext. Ka-8 which is on her own hand writing and signature. The description of the victim and the injuries found in her person have been described in para nos. 14 & 15 above. Dr. Geeta Mudhuwal has mentioned the descriptions and the injuries in the Medico Legal Register of the hospital. On the basis of laboratory examination and X-Ray report she prepared a supplementary medical report which is Ext. Ka-9 on the record. description of the supplementary report is mentioned in para no. 16 of the above. 23. P.W.7 is Dr. B.S. Butaula, Medical Officer, Dehradun who has stated that on 15.03.1985 he was posted in the Govt. Hospital. On the relevant day at about 3:15 p.m. he medically examined Km. Sunita D/o late B.S. Rawat who was brought by Constable 897 Rajveer Singh P.S. Kotwali, Dehradun and on being examination he found the injuries mentioned in para-13 of the above, in the person of the victim. On the basis of medical examination he prepared a medical report Ext. Ka-10 of Km. Sunita after obtaining certificate and after taking signatures of the victim, which is on his own handwriting. 24. On 15.03.1985 at about 6.:05 p.m. P.W.-7 Dr. B.S. Dutaula, M.O. also examined medically the accused Vijay Kumar who was brought by Constable 457 C.P. Rajendra Singh and Constable 621 C.P. Sudhir Kumar, P.S. Kotwali, Dehradun and found the following injuries on his person:- 1. Person examined is a young will build boy. Genital organs will developed; 2. On examining the clothing and under clothings- faecal matter staiting the underwear passed freshly. No blood stain or seminal stain could be found. 3. There is bruise 14cm. x 10cm. in the left leg obliquely with swelling around. Colour reddish blue. The Medical officer has advised for X-Ray of the injury no. 3 received by the injured. He prepared a medical report in this regard, which is Ext. Ka-11 on the record. 25. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and in reply to the question no. 15 they have stated that a quarrel was taken place with P.W. 3 Naresh, therefore they have been falsely implicated in the case. 26. Learned counsel for the accused/appellants has argued that as per the evidence discussed above the guilt of the accused persons is not proved and the Trial Court has wrongly convicted the accused/appellants for the offence punishable u/s 376 I.P.C. Submission of the learned counsel for the appellants is that as per the evidence produced by the prosecution, the prosecution has failed to prove its case beyond reasonable doubt against the accused/appellants. But in the evidence of P.W.1 Km. Sunita, as discussed above she has categorically stated that