RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1229 of 2001 (Old No.1386 of 1990) Diwan Singh S/o Sri Tula, R/o Vill. Mangto, P.S. Chakrauta, District Dehradun ..……. Appellant Versus The State …...……Opposite Party Dated: July 16, 2008 Sri Ramji Srivastava, learned counsel for appellant Sri Harish Pujari, learned Addl. G.A. for the State HON. DHARAM VEER, J. This appeal, preferred under Section 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 22.06.1990 passed by Sessions Judge, Dehradun in Sessions Trial No.78/1988, State Vs. Diwan Singh, whereby, the learned Sessions Judge has convicted the appellant-Diwan Singh under Section 354 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to two years R.I. 2. I have heard Sri Ramji Srivastava, learned counsel for the appellant and Sri Harish Pujari, learned Additional G.A. for the State and perused the entire material available on record. 3. In brief, the prosecution story is that Gulab Singh, brother of victim Smt. Pyaro, moved an application (Ex.Ka-8) on 23.7.1987 to Tehsildar Chakrata, Distt. Dehradun with the averments that on 22.7.1987 at about 6:00 P.M., when his sister Smt. Pyaro was coming back from Goshala at Village Majri, then the appellant/accused Diwan Singh caught hold his sister from her back. The appellant/accused Diwan Singh torn the clothes of victim Smt. Pyaro, pressed her breasts and also tried to lift her Petticoat (GHAGHRA). On the alarm raised by his sister, he (Gulab Singh) along with Chaman Singh and Shyam Singh came on the spot. It was also averted that the complainant Gulab Singh and his companions saw that the appellant/accused was catching hold Smt. Pyaro from her back and she was trying to release herself from the clutches of appellant/accused. While seeing these persons coming, appellant/accused Diwan Singh ran away. The victim Pyaro Devi was medically examined at Doon Hospital. On this application (Ex.Ka-8), Tehsildar Chakrata passed an order to Patwari Circle Tango for registration of the case. On the basis of this order, Chik FIR was prepared by P.W.4 Vidya Dutt Nautiyal, Patwari, i.e. Ex.Ka-2. (In Rural Hilly areas of State of Uttarakhand, the Patwaris are being vested with police powers). The case was registered u/s 354 IPC and the investigation was initiated by P.W.4 Vidya Dutt Nautiyal. The complainant Gulab Singh also moved an application with the same averments to S.P. Dehradun on 23.7.1987, i.e. Ex.Ka-7. During the course of investigation, the Patwari/I.O. prepared the site plan on the pointing out of victim Pyaro Devi, i.e. Ex.Ka-3. The victim Smt. Pyaro Devi also submitted her medical examination along with FIR, that medical report is Ex.Ka-9. Thereafter, on 25.8.1987, the investigation of the case was transferred to local police and investigation was entrusted to S.O. Kamla Chaudhary, who also during the course of investigation, recorded the statements of witnesses and inspected the spot and prepared the site plan i.e. Ex.Ka.4. After completing the investigation, the I.O. submitted the charge sheet against the appellant/accused Diwan Singh in the court u/s 376 IPC, i.e. Ex.Ka-6. 4. After receiving the charge sheet, the learned Judicial Magistrate-II, Dehradun has committed the case to the court of Sessions on 15.06.1988 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 5. On 14.7.1988, learned Sessions Judge, Dehradun framed the charge against the appellant/accused Diwan Singh u/s 376 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 Shyam Singh, eyewitness, P.W.2 Chaman Singh, eyewitness, PW.3 Pyaro Devi, victim, PW.4 Vidya Dutt Nautiyal, Patwari/IO of the case, PW.5 S.O. Kamla Chaudhary, I.O. of the case, PW.6 Gulab Singh, complainant and brother of victim and P.W.7 Dr. B.C. Ramola, who was medically examined the prosecutrix. 7. After that the statement of the appellant/accused Diwan Singh was recorded under Section 313 Cr.P.C. The oral and documentary evidence was put to him in question form. He has denied the allegations made against him. In reply to Question No.14, he has stated that he was posted as a Mate in P.W.D. The husband of Pyaro Devi made illegal construction over the road of PWD. He also lodged a report in this regard, due to this reason, action was also taken against the husband of Pyaro Devi. Due to this enmity, a false case has been lodged against him. On the day of incident, he was in his duty. In oral evidence, he produced D.W.1 Mohar Singh and D.W.2 H.S. Sadan. In documentary evidence, he produced as many as eight documents i.e. Ex.Kha-1 to Ex.Kha-8. 8. After appreciating the entire material available on record and after hearing learned counsel for the parties, the learned Sessions Judge, Dehradun vide his judgment and order dated 22.06.1990 has convicted the appellant/accused Diwan Singh under Section 354 I.P.C. and sentenced him to two years R.I. Against the said order dated 22.06.1990, the appellant/accused has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries found on the person of victim Pyaro Devi which are reproduced as under:- 1. An abrasion 2 cm x 1 cm outer left breast 3 cm above the left nipple 2. Contusion 5 cm x 2 cm on the right breast, 1 cm above the right nipple, colour of the contusion is red.. 3. An abrasion 2 cm x 2 cm on left side neck 4 cm. middle of left clavicle 4. Multiple abrasion 7 cm x 2 cm on the back of left shoulder 5. Abrasion 1.5 cm x 1 cm on left side abdomen, 7 cm above umbilicus at 2 o’clock position 6. Multiple abrasion is on area 4 cm x 3 cm on left side abdomen, 6 cm below and outer to the umbilicus at 8 o’clock position. P.W.7 Dr. B.C. Ramola also opined the nature of injuries to be simple, probable duration was opined about one day and he also opined that the injuries could be caused by friction. 10. To prove its case, the prosecution has examined P.W.1 Shyam Singh, who has stated that victim Pyaro Devi was known to him and she is the wife of Bhao Singh. In the evening of 22.7.1987, he was cutting grass in Ghursari forest. Then he heard the cries of a woman. Thereafter, he along with Chaman Singh ran towards the place from where noise came. Then they saw that Pyaro Devi was crying and appellant/accused Diwan Singh was running. He also stated that victim Pyaro Devi and appellant/accused Diwan Singh were well known to him before the incident. The clothes on the body of Pyaro Devi were torn. When they inquired from Pyaro Devi, then she informed them that appellant/accused Diwan Singh misbehaved with her. Meanwhile, brother of victim Pyaro Devi namely Gulab Singh also reached on the place of occurrence and he took his sister at home. In cross examination, he has stated that after hearing the noise of girl, he and Chaman Singh started from the field and they took about half an hour to reach on the place of occurrence where the victim was crying. The distance from where they heard the noise from the place of occurrence is about 1½ Miles. He further stated in his cross-examination that Gulab Singh has reached on the place of occurrence after a short while of their (Shyam Singh & Chaman Singh) arrival. He further stated that Gowshala of Pyaro Devi from the place of occurrence is on the distance of about 1½ mile. He further stated that he had seen appellant/accused Diwan Singh while running and he had not seen the face of appellant/accused Diwan Singh and he could only seen the back of Diwan Singh. Victim Pyaro Devi informed him that the person, who ran away, was appellant/accused Diwan Singh. 11. P.W.2 is Chaman Singh who has stated that wife of Bhao Singh namely Pyaro Devi was known to him. The incident is said to have happened before 1¼ year and he was in Goshala at that time. The time was in the evening when he heard screaming of Pyaro Devi. Then he being accompanied with Shyam Singh moved towards the place from where the noise came. There Gulab Singh, brother of Pyaro Devi, had also come. Then he saw the appellant/accused Diwan Singh while running. Victim Pyaro Devi was lying on the road and her clothes were torn. Then victim Pyaro Devi informed him that appellant/accused Diwan Singh outraged her modesty. Thereafter, she was taken to her house. Before the incident, appellant/accused Diwan Singh and victim Pyaro Devi were known to him. In cross-examination, he has stated that his Goshala is at the distance of about 1½ mile from his house. He also stated that Patwari/I.O. has not recorded his statement. He also stated that place of occurrence is on the distance of about 2 furlongs from his Goshala. Gulab Singh also reached on the place of occurrence on the same time when he reached on the place of occurrence. When he reached on the place of occurrence, then he saw appellant/ accused Diwan Singh from his back while running on the distance of 25-30 steps. 12. P.W.3 is victim Pyaro Devi who has stated that her house is in Magri and the distance from her house to Goshala is about 4 kilometers. About 1½ year before, she was coming from Goshala to her house. When she reached at the Kotsari forest, the time was in the evening. At that time, appellant/ accused Diwan Singh came there and caught hold her from her back and pressed her breasts. He also dragged her in a field and had also bitten her at her breasts and shoulder and he also did bad work with her. When she made noise, then her brother Gulab Singh reached on the place of occurrence and witnesses Shyam Singh and Chaman Singh also came there. After seeing the witnesses, appellant/accused Diwan Singh ran away from the place of occurrence. She has further stated that appellant/accused also torn her shirt and petticoat (LEHANGA). After that her brother took her at her house. Thereafter, her brother has lodged the report. On the next date of incident, her second husband Chhotu got her medically examined at Dehradun hospital. In cross- examination, she has stated that a Government Hospital in Chakrata is there but she had not gone there. She also stated that Patwari had taken her statement after eight days of the incident but she had not informed the Patwari that appellant/accused Diwan Singh has committed bad work with her. She also stated that her husband Bhao Singh had a house and shop at Chakrata-Mussoorie road and appellant/ accused Diwan Singh is a mate in PWD. Her husband had received the notice for removing the house and shop from the roadside but this notice was received by her husband after the incident. 13. P.W.4 is Vidya Dutt Nautiyal, I.O. of the case, who has stated that on 31.7.1987, he was posted as Patwari at Tehsil Chakrata, Circle Tangao. On that day, he received the typed report and on this report, Naib Tehsildar has ordered for him for registering the case. This order was passed by Vikram Singh, Naib Tehsildar, i.e. Ex.Ka-1. On the basis of this order, he prepared Chik FIR i.e. Ex.Ka-2 and case u/s 354 IPC was registered and he started the investigation of the case. After that he recorded the statement of victim Pyaro Devi and on the pointing out of Pyaro Devi, he prepared the site plan i.e. Ex.Ka-3. He also recorded the statements of other witnesses. Thereafter, the investigation of the case was transferred to regular police on 25.8.1987. In his cross- examination, he has stated that victim Pyaro Devi had not informed him that rape was committed with her. 14. P.W.5 is S.O. Kamla Chaudhary, also an I.O. of the case, who has stated that investigation of this case was entrusted to her on 12.9.1987 as per the orders of District Magistrate. On that day, she was posted as S.O. Chakrata. During the course of investigation, the statement of victim and other witnesses were recorded and she also prepared the site plan on the pointing out of victim Pyaro Devi, i.e. Ex.Ka.4. After recording the statement of victim Pyaro Devi, she converted the case from Section 354 IPC to Section 376 IPC. The entry in this regard was also made in the G.D., the copy of G.D. is Ex.Ka-5. After completing the investigation, she filed the charge sheet against the appellant/accused, i.e. Ex.Ka-6. 15. P.W.6 is Gulab Singh who has stated that victim Pyaro Devi is his sister. The said incident is said to have taken place more than 2½ years back. The time was about 5- 6 P.M. when he heard the noise of his sister. Then he along with Shyam Singh and Chaman Singh reached at the place of occurrence. At that time, all the three persons were sitting at the house of Dhan Singh. When they reached on the place of occurrence, then he had seen that his sister Pyaro Devi was caught hold by appellant/accused Diwan Singh. After seeing them, appellant/accused Diwan Singh ran away from the place of occurrence. Thereafter, he gave the report to S.P., i.e. Ex.Ka-7. He also given his report with regard to this incident to Tehsildar Chakrata, i.e. Ex.Ka-8. His sister had told him that appellant/accused Diwan Singh had intention to commit rape with her. After that he took his sister at Dehradun where she was medically examined. 16. P.W.7 is Dr. B.C. Ramola who has stated that on 23.7.1987, he was posted as Medical Officer at Doon Hospital. On that day, victim Pyaro Devi was medically examined by him and at the time of examination, he found the injuries on her person which have been referred in para 9 of this judgment. He also prepared the injury report i.e. Ex.Ka-9. He has further stated that the injuries could be caused on 22.7.1987 at about 6:00 P.M. In cross- examination, he stated that in all the injuries mentioned in the injury report, there is no sign of any injury caused by teeth bite. He further stated that during the course of medical examination, victim Pyaro Devi had not informed him that rape was committed with her. 17. After that the statement of the appellant/accused Diwan Singh was recorded under Section 313 Cr.P.C. The oral and documentary evidence was put to him in question form. He has denied the allegations made against him. In reply to Question No.14, he has stated that he was posted as a Mate in P.W.D. The husband of Pyaro Devi made illegal construction over the road of PWD. He also lodged a report in this regard due to which action was also taken place against the husband of Pyaro Devi. Due to this enmity, a false case has been lodged against him. On the day of incident, he was in his duty. In oral evidence, he produced D.W.1 Mohar Singh and D.W.2 H.S. Sadan. In documentary evidence, he produced as many as eight documents i.e. Ex.Kha-1 to Ex.Kha-8. 18. Sri Ramji Srivastava, learned counsel for the appellant submitted that as per the evidence discussed above, the only evidence of victim P.W.3 Smt. Pyaro Devi is against the appellant/accused, which also does not inspire confidence and the evidence of this witness is not reliable and believable. He further submitted that P.W.1 Shyam Singh, P.W.2 Chaman Singh and P.W.6 Gulab Singh, who were examined by the prosecution as eyewitnesses, they are not the eyewitnesses of the incident, because they have not seen the incident as per the evidence discussed above. The argument advanced by learned counsel for the appellant bears force. P.W.1 is Shyam Singh who has stated in his cross-examination that after hearing the noise of a girl, he along with Chaman Singh started from the field any they took about half an hour to reach on the place of occurrence where the girl was crying. The distance from where they heard the noise from the place of occurrence is about 1½ Miles. He further stated that Gulab Singh has reached on the place of occurrence after a short while of their (Shyam Singh & Chaman Singh) arrival. He further stated that Gowshala of Pyaro Devi from the place of occurrence is on the distance of about 1½ mile. He further stated that he had seen appellant/accused Diwan Singh while running and he had not seen the face of appellant/accused Diwan Singh and he could only seen the back of Diwan Singh and victim Pyaro Devi informed him that the person, who ran away, was appellant/accused Diwan Singh. Likewise, P.W.2 Chaman Singh has also stated in his cross-examination that his Goshala is at the distance of about 1½ mile from his house. He also stated that Patwari/I.O. has not recorded his statement. He also stated that place of occurrence is on the distance of about 2 furlongs from his Goshala. He also stated that Gulab Singh also reached on the place of occurrence on the same time when he reached on the place of occurrence. When he reached at the place of occurrence, then he saw appellant/accused Diwan Singh from his back while running on the distance of 25-30 steps. Therefore, from the evidence as discussed above, it reveals that P.W.1 Shyam Singh and P.W.2 Chaman Singh along with P.W.6 Gulab Singh have reached on the place of occurrence after the incident had occured. Moreover, they have heard the noise of victim from the distance of 1½ Mile and it is not possible to reach on the spot and also to see the incident on the place of occurrence. P.W.1 Shyam Singh and P.W.2 Chaman Singh have also stated in their evidence that when they reached at the place of occurrence, by that time, appellant/accused Diwan Singh had run away from the place of occurrence and they had not seen the appellant/accused Diwan Singh from his face rather they had seen his back. They have also stated that Gulab Singh had reached on the place of occurrence after their arrival. P.W.3 Pyaro Devi had informed them that the person who was running was appellant/accused Diwan Singh. Thus, from the evidence of all the witnesses i.e. P.W.1 Shyam Singh, P.W.2 Chaman Singh and P.W.6 Gulab Singh, it is proved that all these witnesses have not seen the incident and they had reached on the place of occurrence after the incident had occurred and whatever the incident they have stated, they have stated on the hearsay evidence of victim P.W.3 Pyaro Devi. As such, the presence of these witnesses i.e. P.W.1 Shyam Singh, P.W.2 Chaman Singh and P.W. 6 Gulab Singh on the place of occurrence is doubtful and the prosecution has not proved beyond reasonable doubt the presence of above-said three witnesses on the place of occurrence. 19. Now, the only evidence of P.W.3 Pyaro Devi is left against the appellant/accused Diwan Singh. In the present case, P.W.6 Gulab Singh has lodged the FIR on 23.7.1987 before the Tehsildar and that was registered in the Patwari Chowki on 31.7.1987 at 10:00 A.M. and at the same time, Chik FIR was prepared. P.W.6 Gulab Singh has averted in the FIR that appellant/ accused Diwan Singh had caught hold his sister Pyaro Devi and he also torn her clothes. However, he has not averted in the FIR that rape was committed with his sister Pyaro Devi. But, P.W.3 Pyaro Devi has stated in her evidence that rape was committed with her. The prosecutrix was also examined on 23.7.1987 at 12:20 P.M. Doon Hospital, Dehradun, but there also, she has not informed the doctor that rape was committed with her. Therefore, she was not medically examined by the Medical Officer internally. The external injuries on the person of prosecutrix were examined by medical officer in which the medical officer has stated in his cross-examination that there is no injury on the person of P.W.3 Pyaro Devi of teeth bite. It is pertinent to mention here that P.W.3 Pyaro Devi has stated in her evidence that appellant/accused Diwan Singh had bitten on her breasts and shoulders. In view of this medical evidence that there was no injury on the person of prosecutrix of teeth bite, it also creates a reasonable doubt in the statement of victim Pyaro Devi. Furthermore, the statement of victim P.W.3 Pyaro Devi is not supported by the medical evidence and even by the contents of FIR. The contents of FIR, medical report and the statements of P.W.7 Dr. B.C. Ramola are in total contradiction with the evidence of P.W.3 Pyaro Devi. It is also relevant to mention here that in Chakrata, the Government Hospital was there, however, the victim P.W.3 Pyaro Devi was not medically examined at Chakrata, however she was examined at Dehradun and here also, no explanation in this regard is given by the prosecution. Hence, the statement of P.W.3 Pyaro Devi does not inspite implicit confidence and the same is not reliable and believable. Due to the above-said facts, the prosecution has not proved its case against the appellant/accused Diwan Singh beyond reasonable doubt that he has committed the offence which is punishable u/s 354 IPC. 20. Learned counsel for the appellant further argued that since the appellant/accused Diwan Singh was a mate in PWD and a notice was also sent to the husband of victim Pyaro Devi and due to this reason, he has been implicated falsely. This argument of learned counsel for the appellant/ accused Diwan Singh also bears force. P.W.3 Pyaro Devi has also stated in her evidence that her husband Bhao Singh had a house and shop at Chakrata-Mussoorie road and appellant/accused Diwan Singh was a mate in PWD. Her husband had also received the notice for removing the illegal encroachment from the roadside. All these facts also creates a reasonable doubt in the prosecution case. 21. In view of the above-said facts and circumstances as discussed above, I am of the view that the learned Sessions Judge has erred in law in convicting and sentencing the appellant u/s 354 IPC for two years R.I. and I do not concur with the view taken by the trial court. AS such, the judgment and order passed by the trial court deserves to be set aside. 22. For the reasons recorded above, the appeal is allowed. The judgment and order dated 22.06.1990 passed by Sessions Judge, Dehradun is set aside. The appellant/accused Diwan Singh is acquitted. He is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) July 16, 2008 Rajeev Dang