IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 66 of 2001 Old. Government Appeal No. 855 of 1997 Date of Decision: 30.07.2010 State of Uttarakhand …Appellant Versus Jaspal alias Bittue and others …Respondents Present: Mr. Nandan Arya, learned A.G.A. for the State/appellant. Mr. G.S. Negi, learned amicus curiae for the respondents. Hon’ble Nirmal Yadav, J. The State has preferred this appeal against the judgment dated 03.12.1996 passed by the IInd Additional Sessions Judge, Dehradun vide which the accused respondents have been acquitted of the charges punishable under Section 308 read with Section 34 and Section 377 of the Indian Penal Code, 1860 (in short I.P.C.). The brief facts of the case are that complainant Pankaj aged about 15 years was working as helper with Jaspal, who was working as driver on a truck bearing registration no. UP07/1583. It is alleged that on 16.01.1995 at about 4-5 p.m. Jaspal alias Bittu along with his other friends, namely, Dharmendra alias Jassa and Mahendra alias Bahadur started for Rishikesh to deliver the goods. At about 7:00 p.m. they reached at Rishikesh Glass Factory and the goods were delivered there. They started back for Jwalapur around 8:00 p.m. All the abovementioned three accused purchased liquor from the country made liquor shop. All of them consumed liquor while sitting in the truck thereafter they proceeded towards Rishikesh. When they reached the bridge of Susawa river they stopped the truck and forced complainant Pankaj also to consume liquor. All the accused undressed the complainant 2 and thereafter committed carnal intercourse with him against his wishes. Thereafter the accused respondents threw away his pant and gave him beatings. The complainant became unconscious and thereafter all the three accused left him near the bank of Susawa River. When he became conscious, he found naked except one Jersey on his body. He found one cloth which he wrapped around and went to police station Raiwala and reported the matter to the police on 17.01.1995 at about 6:45 p.m. On the basis of his statement Chick F.I.R. Ex. Ka-1 was recorded. He was medico legally examined on the same day at 11:00 p.m. in S.P.S. Hospital, Rishikesh. The investigation was conducted by Suresh Chandra (PW-3). On completion of the investigation challan was presented and the accused respondents were charge sheeted under Section 308 read with Section 34 and Section 377 of the I.P.C. to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined Complainant Pankaj (PW-1), Dr. S.K. Yadav (PW-2) and Constable Suresh Chandra (PW-3). When examined under Section 313 Cr.P.C. the incriminating evidence was put to the accused-respondents, which they denied and claimed innocence and false implication. After taking into consideration the material facts and evidence available on record, the trial court acquitted all the accused respondents mainly on the ground that the F.I.R. was recorded after a considerable delay and the medical evidence does not support the story propounded by the complainant. 3 The accused respondents have been acquitted of the charge under Section 308 read with Section 34 of the I.P.C. as no injury was found on the person of Pankaj to be dangerous to life. None of the injuries suggests that these injuries could be sufficient to cause death of complainant. As regards the offence under Section 377 of the I.P.C., Dr. S.K. Yadav (PW-2) categorically stated that no injury on and around anus of complainant Pankaj has been found. The complainant did not have any difficulty while passing the stool. According to the doctor, it is impossible if three persons had committed carnal intercourse with him he did not get swelling or injury around the anus. It has also been mentioned by the trial court that the complainant met two persons after he regained consciousness who took him in a hut but it appears to be quite improbable that the complainant did not disclose anything about the incident to those persons nor they have been produced as witness. Before adverting to the discussion on the evidence it would be appropriate to reproduce the injuries found by Dr. S.K. Yadav (PW-2) on the person of Pankaj: - (i) Abrasion 2 c.m. x 1 c.m. black brown in colour on right wrist. (ii) Abrasion 2 c.m. x ½ c.m. on the lower lip on inner side. (iii) Many abrasions on both the buttocks, which were dark brown in colour. (iv) No injuries were found around the anus even with the help of proctospeco. Swelling was found around the anus. The patient did not have any difficulty while passing the stool. Injuries no. 1 to 3 were simple in nature, which could be possible by friction. 4 I have heard Mr. Nandan Arya, learned A.G.A. for the State/appellant, Mr. G.S. Negi, learned amicus curiae for the accused respondent and perused the material available on record. Learned A.G.A. submitted that the complainant has fully supported the prosecution version. The complainant categorically stated that all the three accused had committed carnal intercourse against his wishes after undressing him. Thereafter, they threw him in a pit. He further submitted that the trial court brushed aside the testimony of the victim on the basis of insignificant circumstance. On the other hand Mr. G.S. Negi, learned amicus curiae for the accused respondents submitted that the F.I.R. has been registered after almost 20 hours and the prosecution has not given any satisfactory explanation with regard to the delay in lodging the F.I.R. He further submitted that as per the complainant, he had met two persons who provided some cloth to cover him, however those two persons have not been produced before the court nor their names have been disclosed. Learned counsel for the accused respondents further submitted that the medical evidence totally demolishes the prosecution version. There is no injury on the person of complainant, which could result into his death. He further submitted that even the injuries found on his person belies his statement that the accused respondents had committed carnal intercourse with him as no injuries have been found in and around the anus, even no swelling has been found. The complainant was medico legally examined on the very next day. Learned counsel for the accused respondents further pointed out that all the injuries found on the person of complainant are superficial in nature. 5 There is no such injury due to which the complainant would remain unconscious for almost 16-17 hours. On careful consideration of the rival submissions made by learned counsel for the parties and the material facts and evidence available on record, I do not find any infirmity with the findings of the trial court. Admittedly the F.I.R. was registered after a considerable delay and no satisfactory explanation comes forward to explain the delay. It appears to be highly improbable that the complainant remained unconscious for almost 16-17 hours. It also appears to be quite improbable that he was not noticed by any person while he was lying at the bank of Susawa River from 9:00 p.m. on 16.01.1995 to 2:00 p.m. on 17.01.1995. Moreover, the medical evidence does not support the prosecution case, as the injuries on the person of complainant are simple in nature. There is not even a scratch in and around the anus which could suggest any carnal intercourse having been committed on the person of complainant Pankaj, thus, no offence under Section 377 of the I.P.C. is made out. All the injuries have been found to be superficial in nature and none of the injuries could prove to be fatal, grievous nor dangerous to life, thus offence under Section 308 read with Section 34 of the I.P.C. is also not made out. In view of the above discussions, this Court does not find any illegality or infirmity in the judgment passed by the trial court. The appeal filed by the State is accordingly dismissed. (Nirmal Yadav, J.) VKG 30.07.2010