IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.184 OF 2001 (OLD NO.3070/1998) State ……… Appellant Versus 1. Pratap Singh 2. Pyare Lal @ Pappu 3. Vijay Lal ……… Respondents Dated: September 17, 2010 Mr. Amit Bhatt, Addl. GA for the State/appellant Mr. B.S. Adhikari, Advocate for the respondents HON. DHARAM VEER, J. This appeal, preferred by the State/appellant under Section 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 22.9.1998 passed by Sessions Judge, Almora in S.T. No.31 of 1990, State Vs. Pratap Singh and others, whereby the learned Sessions Judge acquitted the respondents of the charge levelled against them under Sections 392, 366, 376, 342 and 506 r/w Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that Smt. Shanti Devi lodged a report before Patwari Circle Dwarahat, Almora on 15.12.1989 stating therein that an unknown lady, who had come from Gairsen, came to her shop on 14.12.1989 at 4 PM and was enquiring about any work for herself. She was having one nath (nose ring), one note of ` 50/-, two notes of ` 5/-, one lock and key and medicine bottle. All these things were kept in red purse. At that time, respondent Pratap Singh came to her shop and started enquiring about that lady. She said that he himself may enquire from that lady. Respondent forced that lady to accompany him. That lady went with the respondent and left her purse with the complainant. At about 8 PM, three persons, namely, Pratap, Majnoo and Pappu along with that lady came over at her room. These persons took out the revolver and asked to handover the purse of that lady and told that the articles of that lady will be deposited with Patwari. The lady was not willing to go with them, but the above-named persons taken her forcibly. The complainant went behind the persons but she does not know as to where that lady was taken. Next morning, respondent Pappu threatened her that if she will say anything to Patwari, then she will be cut into pieces. Since, she is a foreigner, therefore, for saving the life of her children, she lodged the FIR before the Patwari on 15.12.1989, that report is Ext.Ka-1. (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 the basis of this FIR, chik FIR of the case was prepared, i.e. Ext.Ka-5. On the same day viz. 15.12.1989 at 3 PM, Patwari along with another Patwari Rajendra Singh, Anand Prasad and Chandan Singh visited Gagan Hotel and on the upper room of this hotel, the lady was found. She was covering herself with quilt. On being asked, she disclosed her name as Suman alias Dhanpa Devi. She was a tall lady of 18 years. The recovery memo was prepared on the spot, i.e. Ext.Ka-4. The investigation of this case was started by Patwari Chandan Singh. On 16.12.1989 at 12:30 PM, prosecutrix Smt. Suman was medically examined by PW6 Dr. Renu Srivastava, who after the medical examination, prepared 2 the medical report, i.e. Ext.Ka-3. For determination of the age of prosecutrix, x-ray was conducted. X-ray report is Ext.Ka-2. During the course of investigation, the I.O./Patwari recorded the statement of witnesses, prepared the site-plan of the place of occurrence, i.e. Ext.Ka-5 and on completion of investigation, he filed the charge sheet against the respondents, i.e. Ext.Ka-8. 4. On receipt of charge sheet, learned Munsif Magistrate, Ranikhet committed the case to the court of Sessions on 27.9.1990, after giving necessary copies to the respondents, as prescribed u/s 207 Cr.P.C. 5. On 26.8.1991, learned Sessions Judge, Almora, framed the charge of offence punishable under Sections 392 r/w 34 IPC, 366 r/w 34 IPC, 376 r/w 34 IPC, 342 r/w 34 IPC and 506 r/w 34 IPC against the respondents. The charge was read over and explained to the respondents, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW1 Smt. Shanti, complainant of the case, PW2 Lalit Mohan Singh, PW3 Smt. Suman, victim, PW4 Dr. A.P. Pandey, Radiologist, PW5 Bachan Singh, PW6 Dr. Renu Srivastava and PW7 Rajendra Singh Negi. 7. Thereafter the statements of the respondents were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, they did not produce any oral or documentary evidence in defence. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, 3 learned Sessions Judge, Almora, vide his judgment and order dated 22.9.1998 acquitted the respondents. Against the said judgment and order, the State has preferred the present appeal. 9. To prove its case further, the prosecution has examined PW1 Smt. Shanti, who is the complainant of the case. She has not supported the prosecution and was declared hostile. 10. PW2 Lalit Mohan is a formal witness. He has proved the report Ext.Ka-1 on which he has identified the thumb impression of PW1 Smt. Shanti. 11. PW3 Suman has stated that she came to Dwarahat at 9-10 AM on 14.12.1989 and had enquired for work from one Bhotiyani. She sent her to another Bhotiyani, she was sitting there up to 3-4 PM. Then the respondent Pratap Singh came there and told her that he can provide her work. On this, she went along with him. The tenant of respondent refused to keep her as a servant. Then at about 5-6 PM the respondent Pratap Singh took her in a school, where he committed rape with her forcibly. Thereafter, respondent Pratap Singh taken her from the school and, after half an hour, respondent Pyare Lal and one Majnoo met them on the way. Respondent Pratap Singh left her with them and he himself went towards market. Respondent Pyare Lal and Majnoo took her to Dharamshala and there respondent Pyare Lal committed rape upon her forcibly. Then again, she was taken out from that Dharamshala to Dwarhat market where respondent Vijay met them. Respondent Pratap Singh also came there. These four persons taken out the silver ornament, weighing about 50 Tolas, from her neck and said that they are taking her to Patwari but 4 instead of taking her to Patwari, she was taken to the hotel of respondent Vijay Lal. Except respondent Vijay Lal, all other accused persons went from there. In the hotel, respondent Vijay Lal committed sexual intercourse with her against her wish. Next morning, Patwari came in the hotel and took her in the police chowki. Thereafter, she was got medically examined at Ranikhet Hospital and then she was sent to Nari Niketan Almora. 12. PW4 Dr. A.P. Pandey is the radiologist. He has proved the x-ray plate Ext.1 and x-ray report Ext.Ka-2. On the basis of x-ray report, he opined that the prosecutrix was in between 16-18 years of age. 13. PW5 Bachan Singh is the father of prosecutrix. He has taken her back from Nari Niketan to his residence. He is neither the witness of the occurrence nor he lodged any FIR with the Patwari or police. 14. PW6 Dr. Renu Srivastava has stated that on 16.12.1989 at 12:30 PM she medically examined the prosecutrix and found that the prosecutrix was a young lady of 18 years. The secondary sex characters were well developed and vagina was admitting two fingers easily. No tear was present anywhere. Slight vaginal discharge was there. The vagina was healthy in nature. Smear was taken from the vagina and was sent for pathological examination. She further stated that there was no injury anywhere in the body. She has proved the report Ext.Ka- 3. In cross-examination, she has stated that there was no mark of injury on any part of the body and she was aged 18 years at the time of examination. 15. PW7 Rajendra Singh Negi has proved the recovery memo Ext.Ka-4, site-plan Ext.Ka-6, statement of 5 Smt. Shanti Devi Ext.Ka-7 and charge sheet Ext.Ka-8, which were prepared by Chandan Singh, I.O. of the case. 16. Sri Amit Bhatt, learned Additional Government Advocate for the State/appellant argued that the impugned judgment and order passed by court below is not correct and justified as per the evidence produced by the prosecution. Per contra, Sri B.S. Adhikari, learned counsel for the respondents, while supporting the impugned judgment and order, argued that the prosecution has not proved its case beyond reasonable doubt against the respondents. I find force in the argument put forth by learned counsel for the respondents for the reason that inasmuch as seven witnesses viz. Smt. Shanti, Lalit Mohan Singh, Smt. Suman, Dr. A.P. Pandey, Bachan Singh, Dr. Renu Srivastava and Rajendra Singh Negi were examined as prosecution witness. Out of aforementioned witnesses, P.W.1 Shanti, who was the complainant of the case, has not supported the prosecution case and has been declared hostile. PW2 Lalit Mohan Singh is a formal witness. He has only identified the thumb impression of PW1 Shanti on the report Ext.Ka-1. PW4 Dr. A.P. Pandey is Radiologist, who conducted x-ray of the prosecutrix. PW5 Bacchan Singh is also not an eyewitness of the case nor he had lodged the report. PW6 Dr. Renu Srivastava is Medical Officer, who conducted the medical examination of the prosecutrix and PW7 Dr. Rajendra Singh is the I.O. of the case. Now remains the solitary evidence of PW3 Smt. Suman, who has stated that rape was committed upon her by the respondents at Primary School, Dharmashala and a hotel. But she neither made any hue or cry nor she made any attempt to run away or to defend herself, which creates a reasonable doubt on the 6 statement of prosecutrix. Further, oral evidence of prosecutrix does not get any corroboration from the medical evidence. According to the medical officer, there was no mark of injury on any part of the body of prosecutrix and she was aged 18 years at the time of examination, which clearly shows that the victim was the consenting party. Hence, the evidence of complainant PW3 Smt. Suman is not cogent, reliable and trustworthy. 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 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 the Smt. Suman PW3, it should be fully reliable. Even there is no iota of evidence on the record regarding snatching of articles of the prosecutrix by the respondents and this allegation also remains uncorroborated. 17. Besides the above, it is settled law that where two views are possible and one of the view is possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not 7 ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case. 18. On the basis of the evidence discussed above, I am of the view that the prosecution has been miserably failed to prove its case against the respondents beyond reasonable doubt. Further, when one view is also possible which was taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the interference with the judgment of the trial court at this stage is not warranted. The trial court was correct and justified in acquitting the respondents under the aforesaid sections and I also concur the view taken by the trial court. 19. Resultantly, the appeal preferred by the State lacks merit and is hereby dismissed. The judgment and order dated 22.9.1998 passed by Sessions Judge, Almora 8 in S.T. No.31 of 1990, needs no interference by this Court and is hereby made affirmed. 20. Let the lower court record be sent back. (Dharam Veer, J.) 17.9.2010 RG 9