RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1246 of 2001 (Old No.479 of 1990) Amrish alias Balla S/o Babu Ram, R/o Pithuwala Khurd, P.S. Kotwali, Distt. Dehradun …….….…. Appellant Versus The State …………… Respondent Dated: August 14, 2008 Sri Atul Bahuguna & Sri Niranjan Bhatt, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 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 27.02.1990 passed by IInd Additional Sessions Judge, Dehradun in S.T. No.39 of 1989, State Vs. Amrish, whereby the learned IInd Addl. Sessions Judge has convicted the appellant/accused Amrish under Section 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to two years’ rigorous imprisonment. However, the appellant/accused Amrish was acquitted of the charge punishable u/s 376 IPC. 2. I have heard Sri Atul Bahuguna & Sri Niranjan Bhatt, learned counsel for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Shanti Devi (P.W.2) lodged a FIR stating therein that on 2 07.6.1988 at about 8:00 A.M. when her daughter Km. Seema, aged about 10 years, went in the garden to cut the grass, then appellant/accused Amrish came there and forcibly committed rape with her daughter. It was also stated that when Km. Seema made an attempt to rescue herself and raised an alarm, then the appellant/accused Amrish beaten her due to which she received injuries on her head and neck. Thereafter, Km. Seema came at her house and from there she was taken to Peshin Hospital for medical treatment. The doctor of Peshin Hospital referred Km. Seema to Doon Hospital. It is further averted that Km. Seema narrated the entire incident to her mother (complainant) at Doon Hospital. With the same averments, the FIR was lodged by P.W.2 Shanti Devi at Reporting Police Chowki Patelnagar, Dehradun on 07.6.1988 at 06:15 P.M., the report is Ex.Ka-1. On the basis of this report, Chik FIR was prepared by Head Moharrir Harbans Katoch, i.e. Ex.Ka-11 and the distance of the police station from the place of occurrence is shown as 3½ kilometers. The entry was also made in the G.D., the copy of G.D. is Ex.Ka-12. The investigation of the case was entrusted to P.W.6 S.I. R.L. Arya. On the same day i.e. on 7.6.1988 at 10:33 A.M., Km. Seema was medically examined at Doon Hospital by P.W.8 Dr. R.C. Nautiyal and injury report was prepared, i.e. Ex.Ka-9. A supplementary report was also prepared by P.W.8 Dr.R.C. Nautiyal in respect of injured Km. Seema, i.e. Ex.Ka-10. Later on, Km. Seema was again medically examined on 8.6.1988 at 9:00 P.M. by P.W.4 Dr.D.P. Goel, Medical Officer, Government Women’s Hospital, Dehradun and medical report was prepared i.e. Ex.Ka-2. An X-ray report in respect of Km. Seema was also prepared by P.W.4 Dr.D.P. Goel, i.e. Ex.Ka-3. Thereafter, on 14.6.1988 at 5:15 P.M., victim Km. Seema was again examined by P.W.5 Dr. Kiran Mathur, Senior Medical Officer, Govt. Women’s 3 Hospital, Dehradun and her medical report and supplementary report was also prepared, i.e. Ex.Ka-4 and Ex.Ka-5 respectively. The I.O. during the course of investigation also inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-6. The I.O. also took in his possession the plain clay and the blood stained clay from the place of occurrence and prepared a Fard, i.e. Ex.Ka-7. After completing the investigation, the I.O. submitted the charge sheet against the appellant/accused Amrish @ Balla under Sections 376/307/324 IPC, i.e. Ex.Ka-8. 4. Learned Additional Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions on 01.03.1989 after complying with the provisions of Section 207 Cr.P.C. 5. On 11.04.1989, learned IIIrd Additional Sessions Judge, Dehradun framed the charge against the appellant/ accused Amrish @ Billa under Sections 376/307 IPC. The charge was read over and explained to the appellant/ accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Km. Seema, victim, P.W.2 Shanti Devi, complainant of the case, P.W.3 Phool Chandra, scriber of the report, P.W.4 Dr. D.P. Goel, who has examined the victim on 8.6.1988, P.W.5 Dr. Kiran Mathur, who also examined the victim on 14.6.1988, P.W.6 S.I. R.L. Arya, I.O. of the case, P.W.7 S.O. Shyam Veer Singh, also an I.O. of the case who filed the charge sheet against the appellant/accused, P.W.8 Dr. R.C. Nautiyal, who initially examined the victim Km. Seema on 7.6.1988 and P.W.9 Constable Charan Singh, who proved the Chik FIR. 4 7. Thereafter, the statement of the appellant/ accused Amrish @ Balla was recorded u/s 313 of 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. However, he did not produce and oral or documentary evidence in his defence. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned IInd Additional Sessions Judge, Dehradun vide his judgment and order dated 27.02.1990 has convicted and sentenced the appellants/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order dated 27.02.1990, the appellant/accused Amrish @ Balla has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that injured Km. Seema was medically examined on 07.6.1988 at 10:33 A.M. by P.W.8 Dr. R.C. Nautiyal and her injury report was also prepared i.e. Ex.Ka-9. The injuries found on the person of Km. Seema are reproduced as under: - 1. “Lacerated wound 3 cm x 0.5 cm x scalp deep on the right side head, 10 cm. above right ear, fresh bleeding. 2. Incised wound 3 cm x 1 cm muscle deep right side face, 3 cm away right angle of mouth, bleeding. 3. Incised wound 10 cm x 1.5 cm depth not probed on the right side neck 5 cm below right ear, bleeding profusely 5 4. Abraded contusion 2 cm x 2 cm on the back of right elbow 5. Abraded contusion 4 cm x 2 cm on the back of left thumb 6. Incised wound 5 cm x 1.0 cm depth not probed on the left side neck, 6 cm below left ear.” It was opined by the medical officer that Injury Nos.1,3 & 5 were kept under observation and x-ray was advised. It was further opined that the injuries could be caused by sharp edged weapon and hard blunt object, duration was fresh. The Medical Officer, on the basis of X-ray report, also prepared the supplementary medical report (Ex.Ka-10) and it was opined as under: - 1. Vide X-ray report No.3267 P/8.6.88 of Doon Hospital shows NAD. 2. Vide X-ray report No.3316 P/13.6.88 of Doon Hospital, Dehradun shows no evidence of fracture is seen in bones forming neck, skull, cervical spine and left thumb. As such, the medical officer opined that Injury Nos.1, 3 & 5 are simple in nature. 10. P.W.8 Dr. R.C. Nautiyal was examined by the prosecution in order to prove the aforesaid injury reports. He has stated that on 7.6.1988, he was posted in Doon Hospital as Medical Officer. In his cross-examination, he has stated that the injuries which have been mentioned in injury report Ex.Ka-9, are simple in nature. He has further stated that if the edges of sickle are in cut shape, in that case the injuries mentioned in Ex.Ka-9 are not possible, 6 because in case the injury is caused by a sickle having edges, the margins would be irregular, while the margins of Injuries No.2,3 and 6 are clean-cut. He also stated that injuries No.1,4 and 5 could possibly be come with a blunt weapon (Kundala)“ ;fn njkrh ds nk¡r dVs gksa rks ml n’kk esa izn’kZ d&9 esa vafdr dVh gq;h pksV ua- 2]3 o 6 ugha vk ldrh gSa D;kasfd nk¡r okyh njkrh ds nkar }kjk pksV igqpk;s tkus ls pksV ds fdukjk irregular gksaxs tc fd pksV ua- 2]3 o 6 ds fdukjs clean-cut gSaA pksV ua- 1]4 o 5 fdlh dqan vkys ls vkuk laHko FkhA”. 11. The evidence of P.W.4 Dr. D.P. Goel and P.W.5 Dr. Kiran Mathur relates to the offence punishable u/s 376 IPC and in that offence, the appellant/accused Amrish has been acquitted by the trial court. Hence, the evidence of P.W.4 Dr. D.P. Goel & P.W.5 Dr. Kiran Mathur is not material to decide the controversy involved in the present appeal. 12. P.W.2 Shanti Devi and P.W.3 Phool Chandra are the formal witnesses of the case. P.W.2 Shanti Devi has lodged the FIR on the information received by her from her daughter P.W.1 Km. Seema and has lodged the FIR, i.e. Ex.Ka-1, hence she is a formal witness. P.W.3 Phool Chandra is the scriber of the FIR who has written the report on the dictation of P.W.2 Shanti Devi, hence he is also a formal witness. 13. P.W.6 S.I. R.L. Arya, I.O. of the case, who has stated that on 7.6.1988, the investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of witnesses and inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-6. He also took in his possession the blood stained and plain clay and prepared a Fard i.e. Ex.Ka-7. On 11.6.1988, the investigation of the case was transferred from him. 7 14. P.W.7 S.O. Shyam Veer Singh, also an I.O. of the case, has stated that on 15.6.1988, he was posted as SSI at Kotwali Dehradun. The investigation was transferred to him on the aforesaid date. Before him, Raj Vardhan Gaur was doing the investigation of the case. After completing the investigation, he submitted the charge sheet i.e. Ex.Ka- 8 against the appellant/accused. 15. Thus, in this way, P.W.6 S.I. R.L. Arya and P.W.7 S.O. Shyam Veer Singh are also the formal witnesses of the case. 16. P.W.9 Constable Charan Singh who is also a formal witness, has stated that Chik FIR of this case was prepared by Head Moharrir Harbans Katoch, who was posted along with him and he also proved the Chik FIR, i.e. Ex.Ka-11. The entry was also made in the G.D. by H.M. Harbans Katoch and he also proved the same, i.e. Ex.Ka- 12. 17. In this way, against the appellant/accused Amrish @ Billa, the only evidence remains to discuss in this appeal is the evidence of P.W.1 Km. Seema. 18. Learned counsel for the appellant/accused argued that as per the evidence discussed above, the case against the appellant/accused is not proved by the prosecution beyond reasonable doubt. He further submitted that the only evidence against the appellant is the evidence of P.W.1 Km. Seema which is not reliable and believable and does not inspire confidence. 19. From the evidence discussed above, it is proved that victim Km. Seema has stated in her evidence that she was beaten by the appellant/accused Amrish @ Billa with a sickle on 7.6.1988 at about 9:00 A.M. and appellant/ 8 accused had caused injuries on her head and neck from the sickle which she was having. In her cross-examination, she has stated that appellant/accused had caused injuries on her head and neck from the edge side. She also stated that the sickle was not sharp edged, however cogs were there on the sickle. “xnZu o flj dh pksVsa njkrh ds rst /kkj] fQj dgk nk¡rs okyh lkbM ls ekjh Fkh] esjh njkarh esa rst /kkj ugha Fkh] nk¡rs cus FksA”. However, in the evidence of P.W.8 Dr.R.C. Nautiyal, it has come that Injuries No.1,4 and 5 could possibly be come with a blunt weapon and with regard to injury Nos.2, 3 and 6, it was opined that if the edges of sickle are in cut shape, in that case the injuries mentioned in injury report (Ex.Ka- 9) are not possible, because in case the injury is caused by a sickle having edges, the margins would be irregular, while the margins of Injuries No.2,3 and 6 are clean-cut. Hence, as per the medical evidence of P.W.8 Dr. R.C. Nautiyal, it is proved that injury Nos.2, 3 and 6 were not caused by the sickle which was snatched by the appellant/accused Amrish from P.W.1 Km. Seema. P.W.8 Dr.R.C. Nautiyal has further stated that the injuries No.1,4 and 5 were caused by a blunt weapon and those injuries were simple in nature. As such, it is apparent that Injury Nos.1,4 and 5 were also not caused from the cog of sickle, which also goes to prove that all the injuries No.1 to 6 could not possibly be caused from the cog of the sickle as stated by the victim Km. Seema in her oral evidence recorded before the trial court. Thus, all this discussion throws a reasonable doubt in the prosecution story. Due to this sole reason, the prosecution story is not proved beyond reasonable doubt. As such, it is clear that the evidence of P.W.1 Km. Seema is not corroborated with the medical evidence and even the oral evidence of P.W.1 Km. Seema does not inspire confidence due to the reasons mentioned above. My view also stands fortified with a judgment rendered by Hon’ble Apex Court 9 reported in 2003 (1) Supreme Court Cases, 465 “Joseph Vs. State of Kerala”. Para 13 of this judgment is relevant to mention here which is reproduced as under: - “13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” 20. Learned counsel for the appellant further argued that FIR in the present case is delayed and no reason whatsoever was given by the prosecution for delay, which also leads to false implication. I find force in this argument advanced by counsel for appellant. In the present case, the incident was said to be happened on 7.6.1988 at about 9:00 A.M. and the distance of the police station from the place of occurrence is only 3½ kilometers, however the FIR was lodged in the Police Station at 6:15 P.M. on 7.6.1988. There is no explanation given from the side of the prosecution with regard to delay in lodging the FIR which also creates a reasonable doubt in the prosecution story and it is also fatal for the prosecution. I am further fortified in my view with 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: - 10 “Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal.” 21. Therefore, in view of the foregoing facts and circumstances of the case and also in view of the aforesaid quoted judgments of Hon’ble Supreme Court, the conviction and sentence as awarded by the trial court against the appellant/accused Amrish @ Balla is not correct and justified and I do not concur with the view taken by the trial court. 22. For the reasons recorded above, the appeal is allowed. The judgment and order dated 27.2.1990 passed by IInd Additional Sessions Judge, Dehradun is hereby set aside. The appellant is on bail. He needs not to surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) August 14, 2008 Rajeev Dang