IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1958 of 2001 (Old No.1779 of 1992) Abdul Hamid S/o Rahmatullah R/o Village Ratanpur Sukhri Police Station Kotdwar, District Pauri Garhwal …….….…. Appellant Versus The State …………… Respondent Dated: April 20, 2009 Sri H.S. Rawal, learned amicus curiae 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 16.09.1992 passed by Assistant Sessions Judge, Pauri Garhwal in S.T. No.15 of 1990, State Vs. Abdul Hamid, whereby the learned Assistant Sessions Judge has convicted the appellant/ accused under Sections 376/324 and also u/s 506 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). Appellant/accused was sentenced to ten years’ rigorous imprisonment with fine of Rs.2,000/- u/s 376 IPC and in default of payment of fine, six months’ further R.I. was awarded. Appellant/accused was further sentenced to six months’ R.I. u/s 324 IPC. He was further sentenced to six months’ R.I. u/s 506 IPC. All the sentenced were directed to run concurrently. 2. I have heard Sri H.S. Rawal, learned amicus curiae for the appellant and Sri M.A. Khan, learned brief 2 holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Khudabaksh (P.W.2) lodged an FIR on 1.3.1990 stating therein that since last 10 years he was taking garden of Santap Singh on contract. He along with his family also used to reside there. On 22.2.1990 he went to Satpuli and after returning on 28.2.1990 he was informed by his wife that appellant/accused Hamid, who was living in the Mango Garden of Balwant Singh, had taken his (complainant’s) daughter Km. Naima in a wheat field on 22.2.1990 at 12:00 P.M. when she had gone for easiness. There, the appellant/accused committed rape with her. On the alarm raised by the victim, complainant’s eldest daughter Nasima and wife Smt. Niyazin reached on the place of occurrence and could manage to save the victim from the clutches of appellant/accused. It was further stated that the appellant/accused also poured some liquid substance upon the victim due to which she received injuries on her breast. Appellant/accused also threatened that in case the FIR is lodged, then he would finish the entire family. Due to threat, complainant’s family members could not lodge the report. With the same averments, the FIR Ex.Ka-1 was lodged on 1.3.1990 at 1:30 A.M. at P.S. Kotdwar, Distt. Pauri Garhwal by P.W.2 Khudabaksh, father of the victim. On the basis of this FIR, Chik FIR was prepared by H.M. Roop Chand Tyagi, i.e. Ex.Ka.4. The necessary entry was also made in the G.D., the carbon copy of which is Ex.Ka-5. The investigation of this case was entrusted to P.W.5 S.I. Janeshwar Singh. The victim Km. Naima was sent for the medical examination and her medical examination was conducted on 1.3.1990 at 3:30 P.M. by P.W.4 Dr. Usha 3 Ramola, the medical report is Ex.Ka-2. Supplementary medical report is Ex.Ka-3. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. The I.O. also took in his possession the frock of the victim and prepared a Fard, i.e. Ex.Ka-7. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused in the court, i.e. Ex.Ka.8. 4. Learned Munsif Magistrate, Lansdowne-Garhwal committed the case to the court of Sessions on 02.04.1990 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. The case was transferred to Assistant Sessions Judge, Pauri Garhwal by Sessions Judge for disposal according to law. 6. On 14.12.1990, learned Assistant Sessions Judge, Pauri Camp at Kotdwara framed the charges against the appellant/accused under Sections 376/326/ 506 IPC. The charges were read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Km. Naima, victim, P.W.2 Khudabaksh, father and complainant of the case, P.W.3 Smt. Niyazin, mother of the victim, P.W.4 Dr. Usha Ramola, who has medically examined the victim and P.W.5 S.I. Janeshwar Singh, I.O. of the case. 8. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and 4 documentary evidence was put to him in question form, who denied the allegations made against him. However, he did not produce any documentary evidence in his defence. But in oral evidence, he had produced Smt. Anisha as D.W.1 in defence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Assistant Sessions Judge, Pauri Garhwal vide his judgment and order dated 16.09.1992 has convicted and sentenced the appellant/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 10. Before further discussion, it is pertinent to mention that victim Km. Naima was medically examined on 01.03.1990 at 3:30 P.M. by P.W.4 Dr. Usha Ramola and her medical report was also prepared i.e. Ex.Ka-2. The medical officer on the person of victim found as under: - “Pubic Hairs & Axillary hairs present. Breasts well developed. There was no evidence of fresh injury over body except an old ulcer covered with scrab at right breast over an area 12 cm x 9 cm above the right breast. There is pus discharge from the wound at many places, scrab is peeled off. Base of the wound is pink. Local Examination- There was no evidence of fresh and old injury over private part. Two fingers easily admitted in vagina. No laceration and no vaginal discharge present. Hymen torned. Advice- X-ray wrist and elbow joint, vaginal smear for spermatozoa. 5 After the x-ray was conducted, the supplementary medical report (Ex.Ka-3) was prepared in which it was opined that all the centers of Epiphysis of wrist joints are fused. All the Epiphysis centers of elbow are also fused. Thus, the age of lady is more than 18 years (Eighteen years).” 11. To prove the aforesaid medical reports, the prosecution has examined P.W.4 Dr. Usha Ramola who has proved the medical report Ex.Ka-2 prepared by her. She further stated that on the basis of x-ray report, the age of the victim is more than 18 years. She also prepared the report of the Radiologist i.e. Ex.Ka-3 which was prepared by Dr. Gupta. She further stated that the injuries on the breast of victim were more than 7 days old. In the cross-examination, she stated that there is no injury on the person of victim except one wound. She further stated that if the acid is thrown upon someone, then the spots would come on the body and due to the acid, number of wounds are possible. She further stated that no sign was seen in the private parts of the victim which could prove that the rape was committed forcibly with her. She further stated that there was no sign of rape. She further stated that there was no sign of injury on the private parts and also on the thigh. She further stated that she could not say that how the victim has received the injury. As per the report Ex.Ka-3, the victim was major. 12. Further to prove its case the prosecution has examined P.W.1 Km. Naima, victim of the case, who has stated that on the date of incident, her father was at Satpuli and at 12 o’clock in the day, she had gone for easiness. Then appellant/accused had dragged her in a wheat field where he committed bad work with her. On the alarm raised by her, her mother and elder brother came there and then appellant/accused ran away from there by 6 threatening that if she would make noise, then he would kill her. She further stated that the appellant/ accused poured some liquid on her due to which she received injuries on her breasts. Her mother then taken her to the house. After seven days her father came from Satpuli. Then she and her mother informed the entire incident to her father. Thereafter his father lodged the report in the police station. She was also medically been examined in the hospital. On the date of incident, she was wearing a blouse of yellow color, i.e. Ex.1. In her cross-examination she stated that she informed the I.O. that she received the injuries of nails on her thigh. She further stated that she received 10 or 5 injuries on her thigh. She further stated that she was fallen down on the ground forcibly by the appellant/accused due to which she also received injuries and she fell down from the backside. 13. The statement of P.W.1 Km. Naima gets corroborated from the statement of P.W.2 Khudabaksh, father of the victim who lodged the FIR Ex.Ka-1 and also from the statement of P.W.3 Smt. Niyazan, mother of the victim. 14. P.W.5 is S.I. Janeshwar Singh, I.O. of the case, who has stated that on 1.3.1990 he was posted as S.I. at P.S. Kotdwar. The investigation of this case was entrusted to him. On the basis of the FIR Ex.Ka-1 which was given in the Police Station by P.W.2 Khudabaksh, the Chik FIR was prepared by H.C. Roop Chand Tyagi, i.e. Ex.Ka-4. The entry was also made in the G.D., the carbon copy of which is Ex.Ka-5. During the course of investigation, he inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. Frock of the victim was also taken into possession by him and Fard was prepared i.e. Ex.Ka-7. During the course of investigation, he recorded the 7 statements of witnesses and after completing the investigation, he filed charge sheet against the appellant/accused i.e. Ex.Ka-8. 15. Thereafter, the statement of the appellant/ accused 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. In reply to question No.7, he stated that due to quarrel between the ladies, false report was lodged against him. However, he did not produce any documentary evidence in his defence. But in oral evidence, he had produced Smt. Anisha as D.W.1, who is the wife of appellant/accused. She has stated that victim and her mother and father are her neighbourers. Before the incident, some quarrel used to took place between her and the victim Km. Naima along with her father and mother. She along with her husband and the complainant party were doing the business of gardening and due to this reason, quarrel used to take place between them. The dispute between the parties was 2-3 years prior to the incident. She further stated that the complainant party warned them that they would falsely implicate them in some case. She further stated that her husband is a rickshaw puller and he has been falsely implicated by the complainant party in the above-said case. 16. Sri H.S. Rawal, learned amicus curiae for the appellant/accused argued that the prosecution has not proved its case against the appellant/accused u/s 376/324 and 506 IPC beyond reasonable doubt. I find substance in the argument raised by learned amicus curiae for the following reasons: - 8 A. That In the FIR, the complainant Khudabaksh (P.W.2) has stated that when the victim has raised alarm, then her elder sister Nasima and wife Smt. Niyazan had gone on the place of occurrence and on their intervention, victim Naima was freed from the clutches of the appellant/accused. But in the statement recorded in the court, victim Naima (P.W.1) has stated that her mother and elder brother has reached on the place of occurrence and P.W.3 Smt. Niyazan has stated that her younger son Yasin and her elder daughter went there. In this way, the averments made in the FIR do not get corroboration from the statement of P.W.1 Km. Naima and P.W.3 Smt. Niyazan. On this point, the statement of P.W.1 Km. Naima and P.W.3 Smt. Niyazan are contradictory to each other. B. That P.W.4 Dr. Usha Ramola, Medical Officer has given opinion that there is no sign to prove that the rape was committed with the victim. Even there is no medical report in the file which might reveal that the rape was committed with the victim. In this way, the oral evidence of the victim does not get corroboration from the medical evidence. C. That P.W.1 Km. Naima has stated in her statement that she received injuries of nails on her thigh. But the medical officer has given a specific statement that there was no injury on the thigh of the victim, which further creates a doubt in the evidence of P.W.1 Km. Naima. 9 D. That the Medical Officer has given an opinion that the victim was more than 18 years of age on the date of the said incident. E. That P.W.2 Khudabaksh has stated in his cross- examination that on the date of lodging the report, there was a quarrel took place between his wife and the wife of the appellant/accused. This fact also gets corroborated from the statement of D.W.1 Smt. Anisha, wife of appellant /accused, who has also stated in her statement that she along with her husband and the complainant party were doing the business of gardening and due to this reason, quarrel used to take place between them. The dispute between the parties was 2-3 years prior to the incident which clearly proves the enmity between the parties. 17. Thus, for the reasons as stated above, the statement of P.W.1 Km. Naima does not inspire confidence and the same is not a reliable and natural statement. 18. Learned amicus curiae for the appellant further argued that FIR in the present case is delayed and no reason whatsoever was given by the prosecution for the 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 22.2.1990 at about 12:00 P.M. and the distance of the police station from the place of occurrence is only 4 kilometers, however the FIR was lodged in the Police Station at 1:30 P.M. on 1.3.1990. There is no reasonable and believable explanation given from the side of the prosecution with regard to delay in lodging the FIR which 10 also creates a reasonable doubt in the prosecution story and it is also fatal for the prosecution. I am 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:- “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.” 19. 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 is not correct and justified and I do not concur the view taken by the trial court in convicting and sentencing the appellants/accused as discussed above. 20. For the reasons recorded above, the appeal is allowed. The judgment and order dated 16.09.1992 passed by Assistant Sessions Judge, Pauri Garhwal in S.T. No.15/1990, State Vs. Abdul Hameed, is hereby set aside. The conviction and sentence as awarded against the appellant/accused, as discussed above, is also hereby set aside. Appellant/accused Abdul Hamid is on bail. He needs not surrender unless required in any other case. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) April 20, 2009 Rajeev Dang