Maniram vs State Of Uttarakhand

Lok Pal Singh, J

This appeal, is directed against the judgment and order dated 10.06.2015 passed by Sessions Judge, Tehri Garhwal whereby the learned sessions Judge has convicted accused appellant under section 376(2)(i) IPC and under section 3/4 of Protection of Children from Sexual Offences Act (herein after referred as POCSO). Accused appellant is sentenced to rigorous imprisonment for a period of 10 years along with fine of Rs.5,000/- under section 376(2)(i) IPC and in regard to section 3/4 of POCSO Act it has been observed that as per section 42 of the POCSO Act, accused appellant has already been punished greater in degree i.e. under section 376(2)(i) IPC.

Prosecution story, in brief, is that CP Meena Tomar (P.W.1) gave a written report (Ex. A1) with P.S. New Tehri with the averments that on 27.08.2014 prosecutrix, victim of Kedarnath disaster, was sent for medical examination accompanying with complainant. It is mentioned in the written report that victim disclosed the fact that her father, mother, brother and sister had been flushed out in Kedarnath disaster, and she was rescued by army's helicopter and dropped at Haridwar District where she met a boy named Ajay, a rag picker, who brought her about four months ago to Kabadi Colony Koti New Tehri Garhwal. When the victim was inquired again by the complainant, she disclosed that in Koti accused appellant had committed wrong twice with her and threatened her of dire consequences. On the basis of said report case crime no. 31 of 2014 under section 376(2), 506 IPC and 5 (l)(m)/6 POCSO Act was registered against the accused/appellant. Investigation was conducted by S.I. Aishwarya Pal (P.W.7), who prepared site plan (Ex. A12), sent victim for age determination and after completion of investigation submitted charge sheet (Ex. A14) against the accused appellant.

The case was committed to the Court of Sessions for trial. The trial court framed charge against the appellant under section 376(2) and 506 IPC and under section 5(l)(m) read with section 6 of the POCSO Act.

To bring home the guilt of the accused appellant, prosecution got examined as many as seven witnesses, viz., P.W.1 CP Meena Tomar (complainant), P.W.2 prosecutrix, P.W.3 father of the victim, P.W.4 Arjun Singh Saingar, P.W.5 Dr. Satwant Kaur, P.W.6 HCP Sumer Singh and P.W. 7 S.I Aishwarya Pal, Investigating Officer. Thereafter, evidence of the accused- appellant under section 313 Cr.P.C. was recorded wherein he pleaded that he has been falsely implicated in the case and claimed to be tried. However, no evidence in defence was adduced.

The learned trial court having heard learned counsel for the parties and after perusal of the material available on record, concluded that prosecution has been successful in establishing the guilt of the accused appellant beyond reasonable doubt and held him guilty for the offences punishable under section 376(2)(i) IPC and section 3/4 of the POCSO Act, and sentenced him accordingly. Aggrieved by the judgment and order dated 10.06.2015 the appellant is before this Court.

P.W.1 CP Meena Tomar in her statement has deposed that on 27.08.2014 at about 9:30 a.m., prosecutrix came at Police Station Chamba. She along with Constable Digpal Rana took the prosecutrix to District Hospital Bauradi for medical examination where Dr. Satwant Kaur examined the girl and stated that some wrong has been committed with the girl (prosecutrix). P.W.1 further stated that on interrogating the prosecutrix, she disclosed that accused appellant Maniram had committed wrong twice with her and threatened her of dire consequences.

P.W.2 prosecutrix/victim in her statement deposed that after coming from her house she used to live with Ajay in Koti Colony. She stated that the place where she resided was a slum where other persons also used to reside. She further stated that accused appellant had committed wrong with her by taking off her salwar and laid on her and after that he also took off his clothes. She remained in the slum shanty for two days and, thereafter, moved to Chamba where police brought her to chauki. In her statement recorded under section 164 Cr.P.C. she stated that her parents have died. In her cross-examination she admitted the fact that she made false statement before the police in regard to death of her parents and also that she is the resident of Kedarnath.

P.W.3 father of the victim has deposed that his daughter (victim) is aged about 11 -11 ½ years. He further stated that his daughter left the house in the month of June 2014; he also lodged missing report at P.S. Bhojpur District Ghaziabad in this regard. In his cross examination he stated that his daughter is in the habit of fleeing away from the house without informing her parents and on her return she used to make concocted stories.

P.W.4 Arjun Singh Saingar, Chief Medical Officer, Tehri has proved the age certificate of the prosecutrix on the basis of X-ray plate no. 212 dated 11.11.2014. According to his evidence prosecutrix was more than 11 years and less than 18 years. In her cross examination he further admitted the fact that radiologist has not examined the denture of the victim which is also necessary for age determination.

P.W.5 Dr. Satwant Kaur, who examined the prosecutrix, has deposed that on 27.08.2017 at about 2:30 p.m, the prosecutrix was brought by lady Constable Meena Tomar and Constable Digambar Singh. On her examination she found that hymen was torn, pubic hairs were absent, anus was normal and no injuries were found on her private parts. As per the pathological report, the smears do not show presence of live or dead spermotozoa.

P.W.6 Head Constable Sumer Singh has proved the check FIR (Ex. A7) and is a formal witness.

P.W.7 S.I. Aishwarya Pal recorded the statement of the victim, prepared arrest memo (Ex.A9), prepared site plan (Ex.A12) and after completion of investigation submitted charge sheet (Ex. A14) against the accused appellant.

Heard, learned Amicus Curiae for the appellant, learned counsel for the State and perused the entire material on record.

It is the submission of the learned Amicus Curiae for the appellant that prosecution has failed to prove its case beyond reasonable doubt. It is contended that after disclosure of the alleged incident to the police, no disclosure memo was prepared by the police. Further, the medical evidence also does not support the case of the prosecution. It is further contended that there is contradictions in the statements of the victim. Learned Amicus Curiae also contended that the inconsistencies affected the very root of the matter and, therefore, the appellant is entitled to the benefit of doubt and his conviction and sentence by the Trial Court is liable to be set aside. In support of his submission learned Amicus Curiae placed reliance upon the judgment of Hon'ble Apex Court in the case of Krishan Kumar Malik vs. State of Haryana (2011) 7SCC 130

Per contra learned Dy. A.G. submitted that as per medical evidence the age of the prosecutrix was about 11 years at the time of occurrence and the prosecution finds support from the statement of the prosecutrix. The impugned order of conviction is well reasoned and discussed as per the established legal preposition which requires no interference by this Court.

In the present case, the entire prosecution story revolves upon the FIR lodged by CP Meena Tomar. Prosecutrix herself never made any complaint before the police personnel in regard to commission of rape upon her by the accused appellant. Perusal of the statement of P.W. 1 would reveal that on the strength of the statement made by Dr. Satwant Kaur that something wrong was committed with the prosecutrix the FIR was lodged and investigation was set into motion. During investigation, the Investigating Officer traced out the residential address of the prosecutrix at Farid Nagar, P.S. Bhojpur, District Ghaziabad, Uttar Pradesh, and her father also, who has also been examined as P.W.2.

From the very inception, the prosecution story appears to be doubtful and flimsy, as in the FIR it is nowhere mentioned that victim has informed the lady constable about the alleged incident of rape committed by the accused appellant upon her. During investigation, prosecutrix tried to mislead the Investigating Officer by making false statement in regard to the non-existence of her parents and also by giving wrong address of her parents. Besides this nothing has been found in the medical examination report which proved that the prosecutrix was subjected to rape. No doubt, to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, but, in the case in hand, the evidence of the prosecutrix, shows several lacunae. The Hon'ble Apex Court in the case of Ramdas and Ors v. State of Maharastra (2007) 2 SCC 170 held that conviction on the sole basis of the testimony of prosecutrix is not sustainable when the circumstances reflect shadow of doubt over the correctness of prosecutrix version.

As per the report of the Radiologist, age of the girl is mentioned above 11 years and below 18 years, which has a gap of about 7 years. According to the medical jurisprudence there can be difference of 2 years of age on higher side or 2 years on lower side but the report prepared by the radiologist determining the age between 11 to 18 years is improbable. It seems medical officer who has conducted ossification test of the victim was not sincere to prepare the report. He did not examine the denture of the victim, which is also necessary for age determination of the prosecutrix, as admitted by P.W.4 in his cross examination. Further, prosecution has not examined the radiologist so he may be examined on particular point.

P.W. 3 father of the prosecutrix in his statement has admitted that his daughter used to fled away from her house, and whenever she return back, she used to narrate false stories.

It appears that for an ulterior motive the FIR was lodged by lady constable Meena Tomar against the accused appellant on the false story, set up by the complainant with the help of the prosecutrix. The Investigating Officer also failed to discharge her duties in fair and impartial manner which is not expected from the Investigating Officer. Further the medical report also does not support the version of the prosecution.

Their Lordships of Hon'ble Apex Court in the case of Varkey Joseph vs. State of Kerela 1993 Supp. (3) 745 has held that prosecution has to prove its case beyond reasonable doubt but that does not mean that the prosecution case may be presumed to be proved, rather it has to come within the ambit of must be proved. Unless, prosecution prove its case in the decree of must be true, conviction should not be made. Paragraph no. 12 of said judgment is reproduced hereunder:-

"Suspicion is not the substitute for proof. There is a long distance between ,may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under section 302 I.P.C."

Having heard learned counsel for the parties and on perusal of the record of the case, this Court is constrained to allow the appeal and set aside the impugned order, as the prosecution has failed to prove its case of rape against the accused appellant at the instance of the complainant, this I say due to following reasons: firstly; the FIR has been lodged at the instance of CP Meena Tomar and prosecutrix has herself not disclosed about the alleged incident of rape; secondly there are various contradictions in the statement of the prosecutrix, from which it can safely be concluded that she was certainly not telling the truth; thirdly medical evidence also does not support the prosecution case; fourthly, prosecution did not examine the person Ajay with whom the prosecutrix was residing and in whose shanty the alleged crime is said to have been committed; lastly the father of the prosecutrix, to whom she reported that he died during Kedarnath disaster, has admitted the fact that his daughter is in habit of fleeing away from her house and used to cook up false and baseless stories.

In the light of the above, this Court is of the considered opinion that the prosecution has failed to prove the case of rape against the appellant beyond reasonable doubt. In other words, there is no evidence adduced by the prosecution to prove the commission of the offence of rape by the appellant on PW2 and the evidence adduced is not sufficient to prove the case of rape against the appellant.

The learned Sessions Judge is not justified in convicting the appellant for an offence punishable under Section 376(2)(i) IPC and Section 3/4 POCSO Act and to sentenced him to undergo rigorous imprisonment for ten years.

In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside. The appellant is acquitted of the charges levelled against him. He is accordingly set free, if not required in connection with any other crime.

Let a copy of this judgment be sent to the Superintendent of the Jail concerned for information Lower court record be sent back.