HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 166 of 2006 Vipin Sarkhi S/o Govind Sarkhi R/o Village Lanthuyara District Pithoragarh ……Appellant Versus State of Uttarakhand …… Respondent Mr. D.C.S. Rawat, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. G.A. for the respondent/State. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 24.05.2006, passed by learned Sessions Judge, Nainital in S.T.No. 116 of 2005, whereby the accused/appellant has been convicted & sentenced to undergo rigorous imprisonment for seven years u/s 376 Indian Panel Code, 1860 and a fine of Rs.5,000/-. In default of payment of fine, the appellant shall further undergo imprisonment for six months. 2. The facts of the case are that the informant Dhan Singh Bist lodged a report Ex.Ka.3 on 09/05/2005 at about 1:00 p.m. at Patti Patwari Pandey Gaon, District Nainital, alleging therein that her mother (victim) aged about 70 years was all alone in her house on the date of the occurrence. It was further alleged that he had been working as a servant in the tea stall of Girish Chandra Belwal. While on duty, the informant received information from Mohan Chandra that the accused/appellant had committed rape upon her mother. Thereupon, the informant went to his house and saw her mother weeping. Seeing the informant, the accused/appellant fled away from the spot. It was further alleged that the informant chased the accused/appellant and apprehended him after a distance of one km. It was further alleged that while committing the rape, the accused/appellant closed the mouth of her mother and gave threats of dire consequences. Thereafter, the police started the investigation and the victim was taken to hospital for medical examination. After completing the investigation, the police submitted the chargesheet against the accused/appellant u/s 376 and 506 I.P.C. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charges u/s 376 and 506 I.P.C. against the accused/appellant. The accused/appellant denied the charges levelled against him and claimed his trial. 4. The prosecution in support of its case examined as many as six witnesses. Dr. Sangeeta Tripathi PW1 is the Medical officer who had examined the victim. Dhan Singh PW2 is the informant and son of the victim who had lodged the report in the police station. Girish Chandra PW3 is the owner of the tea restaurant (stall) where the informant was employed. He has stated that on 09/05/2005 Mohan Singh came to his restaurant and informed the informant about the rape of his mother. Mohan Chandra Paladiya PW4 has stated that he had not informed the informant about the rape of his mother in the restaurant. This witness was declared hostile. Harish Chandra Joshi PW5 is the Investigating Officer who has investigated the matter and submitted the chargesheet (Ex.Ka.7) against the accused/appellant. Ramesh Chandra Paladiya PW6 had seen the victim weeping when he went to the shop of Girish Belwal for purchasing the cheese. 5. The accused/appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that he has falsely been implicated in this case due to enmity. 6. The learned Sessions Judge, after appreciation of the evidence and hearing the parties convicted the accused/appellant and sentenced him as indicated above. 7. I have heard Mr. D.C.S. Rawat, Amicus Curiae for the appellant and Mr. Amit Bhatt, learned Addl. G.A. for the respondent/State. 8. The victim was medically examined by Dr. Sangeeta Tripathi PW1. She has stated in her evidence that on 10/05/2005 she examined the victim and after going through the pathological and other medical tests, found that there was redness, swelling and abrasion in the vagina of the victim. She has further stated that on the basis of the said injuries, she opined that the victim had been subjected to sexual intercourse. The doctor did not find any external injuries on the person of the victim. 9. The prosecution in support of its case adduced the evidence of Mohan Chandra Paladiya PW4 who has stated in his evidence that he had never informed the informant about the sexual assaults on the victim by the accused/appellant. He was declared hostile. The informant Dhan Singh was examined as PW2 before the trial court and he has stated the facts as narrated in para 2 of my judgment in his evidence. He has further stated that her mother had told him that the accused/appellant had committed rape upon her. He has further stated in his evidence that the victim had died during the pendency of the trial. The prosecution also examined Girish Chandra PW3 who has stated in his evidence that the informant had been working in his restaurant as a servant. He has further stated that Mohan Singh came to his restaurant on 09/05/2005 at about 3:00 to 3:30 p.m. and informed the informant Dhan Singh PW2 that his mother had been weeping in her house due to rape committed upon her. Thereafter, the informant Dhan Singh and he came at the house of the informant. Upon seeing them, the accused/appellant fled away from the spot. They chased the accused/appellant and apprehended him at about ½ km. distance from the place of the incident. Thereafter, they brought the accused/appellant in the house and the victim had recognized him. It was further stated by the witness, that the victim has stated them that the accused/appellant is the person who had committed rape upon her. Ramesh Chandra Paladiya was also examined as PW6 and he has stated in his evidence that on the date of the incident, he went to the tea stall of Girish Belwal for purchasing the cheese for marriage function. When he was returning, he saw an old lady weeping in her room and one boy was also in her room. This witness has not named the person who was standing there and no identification has been made in the court by the witness. 10. Learned Amicus Curiae contended that there is no evidence of participation of the accused/appellant in the commission of the offence; the evidence of other witnesses are only hearsay evidence; and the evidence is not admissible as evidence. Learned Addl. G.A. supported the findings of the learned trial court. 11. It is true that Mohan Chandra Paladiya PW4 who is stated to have informed the informant Dhan Singh PW2 has not supported the prosecution version. The informant Dhan Singh PW2 and Girish Chandra PW3 have stated that immediately after receiving the information, they went to the house of the informant. It is also in the evidence that the house of the informant Dhan Singh PW2 is situated from the tea stall at a distance of about 2 kms. Informant Dhan Singh PW2 has stated that they took at-least 10 minutes to reach his house. When they reached the house, the accused/appellant was coming out from the house. Thereafter, the victim has stated them that the accused/appellant had committed rape upon her. This evidence is hearsay evidence and it cannot be held admissible and relevant u/s 6 of the Indian Evidence Act as there is no proximity of time in this case. The defence has relied upon the judgment of Hon’ble Apex Court in the case of Vasa Chandrasekhar Rao Vs. Ponna Satyanarayana and another reported in (2000) 6 SCC p/286. As the hearsay evidence is not admissible in the evidence, it would not be safe to convict the accused/appellant in this case. The victim has died during the trial of the case. Thus, there is no evidence that the accused/appellant participated with the commission of the offence. 12. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has not been able to establish the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has erred in convicting and sentencing the accused/appellant. The judgment and order dated 24.05.2006 passed by learned Sessions Judge, Nainital in S.T.No. 116 of 2005 is hereby set aside. The appeal is liable to be allowed and is hereby allowed. 13. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted in three months. Dated 8th July, 2008 Shiv (J.C.S. Rawat, J.)