RESERVED JUDGMENT HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.629 OF 2001 (OLD NO.151 OF 1997) Raju alias Rajendra Prasad S/o Sri Ram R/o Village Kanchu Patti Dharakriya, District-Tehri Garhwal .……….. Appellant Versus State of Uttarakhand ...…….. Respondent Dated: March 16, 2010 Sri Lokendra Dobhal, Advocate for the appellant Sri Nandan Arya, AGA for the State Hon’ble Dharam Veer, J. This criminal 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 6.2.1997 passed by Sessions Judge, Tehri Garhwal, New Tehri in Sessions Trial No.11 of 1993, State Vs. Raju @ Rajendra Prasad, whereby the learned Sessions Judge has convicted the accused-appellant under Sections 363 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of three years with fine of Rs.1,000/- and in default of payment of fine, six months further rigorous imprisonment was awarded. He was further convicted u/s 376 IPC and was sentenced to seven years R.I. with fine of Rs.2,000/- and in default of payment of 2 fine, one year’s further imprisonment was awarded. Both the sentences were directed to run concurrently. 2. Heard Sri Lokendra Dobhal, learned counsel for the appellant as well as Sri Nandan Arya, AGA for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 12.4.1991 Dayanand (PW2) lodged a complaint before Sub Divisional Magistrate, Tehri, District Tehri Garhwal against the accused-appellant Raju, his father Sri Ram and his mother Banarasi with the allegations that the complainant is in service from last so many years and his wife and children were living in the house. His minor daughter named Km. Basanti was also living in his house. It is further stated that father of the accused-appellant had done labour work in his field and the present accused-appellant was also doing labour work in his field for last one year. It was alleged that in the absence of the complainant the accused- appellant in connivance with the other accused committed rape with her daughter Basanti due to which she has become pregnant. On 30.3.1991 when his daughter Basanti was taken to Delhi by Govind Ram and Chandra Ram in pregnant condition then he came to know about these facts. Then he came to Village Kainchu along with Basanti and above-said two persons. During the period of enquiry, the accused- appellant and his parents took his daughter to their house. With the same averments, complaint Ext.Ka-1 was lodged by Dayanand (PW1) on 12.4.1991. On the said complaint, S.D.M., Tehri passed an order to 3 Supervisor Kanungo, Chamba to investigate the matter according to law. On 19.4.1991, Supervisor Kanungo then directed Patwari Halka to investigate as per law. On the basis of this order, Patwari Koti prepared the Chik FIR of the case on 20.4.1991 at 3 PM, i.e. Ext.Ka- 5. Necessary entries were also made by him in the G.D., copy of which is Ext.Ka-6. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). On 23.4.1991, Km. Basanti was being recovered from the house of accused-appellant and the recovery memo thereof was prepared, which is Ext.Ka-3. Thereafter she got medically examined by Dr. Beena Rana (PW4) who also prepared her medical report i.e. Ext.Ka-4. During the course of investigation, the Patwari (Investigating Officer) recorded the statement of the witnesses and prepared the site-plan of the place of occurrence, i.e. Ext.Ka-7. On completion of the investigation, he filed the charge sheet against the accused-appellant. That charge sheet is Ext.Ka-8. 4. After receiving the charge sheet, learned Chief Judicial Magistrate, Tehri Garhwal committed the case to the court of Sessions on 11.3.1993, after giving necessary copies to the accused/appellant as prescribed u/s 207 Cr.P.C. 5. On 13.8.1993, learned Sessions Judge framed the charge u/Ss 363 and 376 IPC against the accused/appellant. The charge was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. 4 6. In order to prove its case, the prosecution has examined PW1 Basanti Devi, victim, PW2 Dayanand, complainant of the case, PW3 Keerti Dutt, eyewitness of recovery of Km. Basanti Devi, PW4 Dr. Beena Rana, who medically examined the victim on 23.4.1991 and prepared her medical report Ext.Ka-4 and PW5 Bachaspati Nautiyal, Patwari, Investigating Officer of the case. 7. Thereafter, the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. However, he has not produced any oral or documentary evidence in defence. 8. After appreciating the evidence on record and hearing learned counsel for the parties, learned Sessions Judge, Tehri Garhwal, New Tehri vide his judgment and order dated 6.2.1997 convicted and sentenced the accused/appellant as mentioned above. Feeling aggrieved by the said judgment and order dated 6.2.1997, the accused/appellant has preferred this appeal. 9. Before further discussion, it is pertinent to mention that the victim Km. Basanti was got medically examined on 23.4.1991 at 2 PM by Dr. Beena Rana (PW4) and her medical report was also prepared i.e. Ext.Ka-4, which reads as under:- B.B. – Shri Vachaspati Nautiyal Patwari Kothi Distt. Tehri. 5 M.I. – A pin head size black mole present in front of neck. Examination for pregnancy – Examination of breast – Breast well developed and secretion comes out on squeezing the nipple. Pigmentation is present on nipple are areola. See areola is present with montogoumary tubercle On per abdomen exam – - Stria Gravidarum are present in abdomen. - Abdomen is distended and fundal height is about 32-34 weeks of pregnancy. - Foetal parts are palpable and foetal heart sound is audible. - Int. and Ext. ballotment is present. On per vaginal examination – - Cervix is soft and moist - Vagina admits one finger easily and two finger tightly. The girl is not habitual of sexual intercourse. Opinion – - In my opinion the woman is carrying her 32- 34 weeks of pregnancy and the foetus is alive. - Vaginal smear is sent for presence of spermatozoa. - For age confirmation the women is being referred to Superintendent Combined Hospital, Tehri/CMO, New Delhi. 6 10. To prove the above-noted medical report, the prosecution examined PW4 Dr. Beena Rana who has proved the medical report Ext.Ka-4. 11. To further prove its case, the prosecution examined PW1 Basanti Devi, who has stated that the appellant/accused Rajendra Prasad was known to her. He is the resident of her village. The said incident took place in the month of Bhadon. On the date of incident at about 12 or 1 in the daytime she had come from Chan to her house at Kainchu. No one was there in the house. She went into her room. Meanwhile, appellant/accused Raju came in her room and caught hold her and also threatened her to life. The accused/appellant committed rape with her and threatened her that if she would disclose this fact to anyone then she would be killed. Thereafter he ran away from there. Due to above incident, she became pregnant about which she could know after 3-4 months. She then told about her pregnancy to the accused/appellant who assured her that he will marry her. But lateron he refused to marry her. Then she told this fact to the mother of the appellant/accused. His mother took her to Chamba Hospital where doctor told her that she is carrying pregnancy of 7-8 months. She further deposed that her father was living at Delhi at that time. On the direction of her mother, her uncle took her to Delhi where she told the entire incident to her father. Then she alongwith her father came to their house. She further deposed that when her father asked her that she cannot stay in his house then she told this fact to the accused/appellant who then took her to his house. She stayed in the house of the 7 accused/appellant for 20 days. His mother gave her medicines. After 20 days, Patwari came there and she was taken to Chowki alongwith the accused/appellant and his father. Thereafter they were taken to Tehri and then she was taken before S.D.M. She further deposed that as per the instructions of the accused/appellant she gave her statement before the S.D.M. After her statement, the appellant/accused refused to marry her. Thereafter she was taken to hospital where she delivered a child. The child died after one year. In the cross-examination, she stated that her parents asked her to leave their house. She told the same to the appellant/accused who then asked her to come to his house. Then she went to his house. She further stated that neither the appellant/accused not his parents had taken her to their house. She remained in the house of the appellant/accused for 20 days and during this period she slept with the appellant/accused and the appellant/accused used to do sexual intercourse with her. 12. PW2 Dayanand is the complainant. He has reiterated the contents made in the complainant. He has proved the complaint Ext.Ka-1. 13. PW3 is Keerti Dutt, who has stated that the appellant/accused and the victim Basanti are known to him. On 23/24 of April, 1991 Patwari had come in the house of the appellant/accused and he was called by the Patwari. Then in his presence Basanti was recovered from the house of the appellant/accused. Recovery memo Ext.Ka-3 was prepared on the spot on which he had also made his signatures. 8 14. PW5 Bachaspati Nautiyal is the Investigating Officer of the case. He has stated that on 20.4.1991 he was posted at Patwari Chowki, Kothi. On that day, he received the report Ext.Ka-1. On the basis of that report, Chik report Ext.Ka-5 was prepared by him. Necessary entries were also made in the G.D. by him, copy of which is Ext.Ka-6. On 23.4.1991 he prepared the site-plan Ext.Ka-7 of the place of occurrence and recovered Basanti from the house of the appellant/accused, a recovery memo Ext.Ka-3 thereof was also prepared by him. Thereafter, on the same day, the victim was sent for medical examination at Tehri Combined Hospital. During the course of investigation, he also recorded the statement of the witnesses and after completing the investigation, he filed the charge sheet Ext.Ka-8 against the appellant/accused. 15. Thereafter, the statement of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. However, he has not produced any oral or documentary evidence in defence. 16. Sri Lokendra Dobhal, learned counsel for the appellant argued that the prosecution has not proved the case against the appellant/accused beyond reasonable doubt. I find force in the argument of learned counsel for the appellant/accused due to following reasons:- i) P.W.1 Km. Basanti has deposed that rape was committed with her in the month of August, 9 1990, however, she did not disclose this fact to anyone except the appellant/accused for about seven months and remained silent for such a long period. ii) In the statement recorded u/s 164 Cr.P.C. before the Special Judicial Magistrate Tehri on 24.4.1991, the victim Basanti had stated her age to be 20 years and had stated that 7-8 months before in the night she was sleeping alone in Chan, then one man came there and committed rape with her due to which she became pregnant and now she is carrying pregnancy of about 7-8 months. She cannot say who committed rape with her on that night. The statement of victim recorded u/s 164 Cr.P.C. is reproduced hereunder:- **7&8 eghus ifgys Hkknksa dh ckr gS eSa viuh Nku esa vdsyh lksbZ gqbZ Fkh jkr dh ckr gS fd ,d enZ ogk¡ vk;k mlus esjs lkFk tcjnLrh dh cqjk dke fd;k] mlh jkr ds laHkksx ls eSa xHkZorh gks xbZ vc 7&8 efgusa dk xHkZ gSA ml jkr esjs lkFk fdlus cqjk dke fd;k eSa ugha dg ldrh ;gh dguk gS vkSj dqN ughaA+**” iii) P.W.1 Km. Basanti has deposed that when her parents did not allow her to stay in their house then she had gone in the house of the appellant/accused and stayed there for 20 days. During those 20 days, she slept with the appellant/accused and the appellant/accused continued doing sexual intercourse with her. This statement of the victim makes it 10 abundantly clear that the appellant/accused committed sexual intercourse with the victim with the consent of the victim at number of times even she did not make any objection to it. iv) That for the determination of the age of victim, no X-ray was conducted and even no supplementary report was filed by the prosecution. v) That the said incident was said to have taken place in the month of August 1990 and undisputedly the application for lodging the FIR was moved on 12.4.1991 i.e. about eight months later and the chick FIR could be prepared on 20.4.1991. This delay in lodging the FIR has not been explained properly by the prosecution by showing the sufficient cause. Therefore, this unexplained delay in lodging the FIR is also fatal to the case of prosecution. vi) As per the evidence discussed above, there is only the solitary evidence of P.W.1 Km. Basanti, which is against the appellant/accused, and it also does not inspire confidence and the evidence of this witness is not reliable and believable. The other witnesses viz. P.W.2 Dayanand and P.W.3 Keerti who were examined by the prosecution, have not seen the incident. Though it is permissible to sustain a conviction on the solitary evidence. But, at the same time, such a course can be adopted only if the evidence tendered by such 11 witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. However, in the present case, the solitary evidence of P.W.1 does not inspire implicit confidence and the same is not reliable and believable statement. Hence on the basis of the evidence which does not inspire confidence and when the same is not reliable and believeable, it is not safe to convict the appellant/accused. 17. In support of his arguments, learned counsel for the appellant has placed reliance on the judgment of Hon’ble Apex Court in case of “Vijayan v. State of Kerala” reported in (2009) 3 Supreme Court Cases (Cri) 585. He has relied on Para-5, which reads as under:- “5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realization dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant- accused was responsible for the said child. In the 12 face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case.” 18. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and in view of the judgment of Hon’ble Apex Court (Supra) and other circumstances, it is clear that the prosecution has not disclosed the true genesis of the occurrence and has thus not presented the true version. The prosecution has been failed to prove the case against the accused/appellants beyond reasonable doubt. As such, the trial court was in error in brushing aside serious infirmity in the prosecution case and the impugned judgment and order of the trial court, in view of the above narrated legal proposition, evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 19. For the reasons recorded above, the appeal is allowed. The judgment and order dated 6.2.1997 passed by Sessions Judge, Tehri Garhwal, New Tehri in Sessions Trial No.11 of 1993, State Vs. Raju @ Rajendra Prasad, whereby the learned Sessions, is set aside. The conviction and sentence as awarded against the appellant/accused, as discussed above, is also hereby set aside. Appellant/accused is on bail. He needs not surrender unless required in any other case. 13 His bail bonds are cancelled and sureties are discharged. 20. A copy of this judgment shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) 16.03.2010 RG