Raju vs State Of Uttarakhand

Lok Pal Singh, J

This criminal appeal is received from jail through the Superintendent, Sub Jail, Haldwani, District Nainital and is directed against the judgment and

order dated 03.09.2013, passed by learned Sessions Judge, Nainital, in Sessions trial no. 124 of 2013, whereby appellant Raju was convicted under

Section 376(2)(i) of IPC and was sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of Rs. 5,000/-.

2) Heard learned counsel for the parties and perused the entire evidence on record.

3) Prosecution story, in brief, is that PW1 (complainant and mother of the victim) submitted a report (Ext. A-1) after scribing the same from Sanjay

Arora, at P.S. Lalkuan, District Nainital, on 13.04.2013, stating therein that she used to live in the house of Raju, situated in Bai Basti, as tenant. On

13.04.2013, at 06:45 P.M., when she reached her room Smt. Madhu Devi (mother of the accused Raju) told her that Raju had committed rape with

her daughter Km. ‘X’ (name withheld). When the complainant reached inside she found her daughter lying on the cot in unconscious state,

victim was disrobed and she was complaining pain on her back portion, which indicates that the victim was subjected to carnal intercourse. The cot

was found broken and faecal matter of the victim was lying on it.

4) On the basis of said report, chik FIR (Ext. A-12) was lodged against Raju in respect of offence punishable under Sections 377 of IPC. The

Investigating Officer started investigation and took into possession the pajama of the victim and prepared memo (Ext. A-2) and got the victim

medically examined. Medical report and report of Radiologist are exhibited as Ext. A-4 and Ext. A-5. Report prepared by Dr. Bankoti is exhibited as

(Ext. A-7), Pathology report as (Ext. A-8), Medical examination report as (Ext. A-9) and medical report as (Ext. A-10) of the psychiatrist,

supplementary report as (Ext. A-11) and Medical Report as (Ext. A-18). The I.O. arrested accused Raju and prepared arrest memo (Ext. A-16) and

information memo (Ext. A-17) thereof. The underwear of the accused was also taken into possession and memo (Ext. A-21) was prepared. I.O. also

prepared site plan (Ext. A-19) and recorded the statements of the witnesses. After completion of investigation, charge sheet (Ext A-22) was filed

against the accused-appellant for his trial in respect of offences punishable under Sections 377, 511 of IPC and Section 8 of POCSO Act.

5) The case was committed to the court of Sessions for trial. Charges were framed against the accused under Sections 376 of IPC and Section 8 of

POCSO Act. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 (name withheld) [complainant / mother

of the victim], PW2 Dr. Manju Rawat (Medical Officer), PW3 Smt. Madhu (mother of the accused), PW4 Constable D.N. Mahant and PW5 S.I.

G.S. Adhikari (Investigating Officer). However, no evidence in defence was adduced. In reply to questions posed under Section 313 of Cr.P.C., the

accused replied that he has been falsely implicated in the crime. The trial court, after hearing the prosecution and the defence, found the accused

guilty of the charges framed against him and sentenced him accordingly.

6) A perusal of the FIR and charge sheet as well as the statement of the complainant would reveal that the allegations levelled against the accused-

appellant were that on 13.04.2013, in the evening, when the complainant reached her house, Smt. Madhu (mother of the accused-appellant Raju) told

her that Raju, who is in inebriated state, has trespassed into the house of the complainant and had committed carnal intercourse with the victim. The

statement of the complainant has changed the whole course of the prosecution story. In her examination-in-chief, complainant stated that on

13.04.2013, in the evening, mother of the accused-appellant, told her that the accused-appellant has committed rape with complainant’s daughter

and when she reached inside the room she found the victim unconscious and the cot, which is in complete disarray, was broken. PW1 further stated

that the victim was complaining pain on her back region. The FIR was lodged by PW1 after scribing the same from Sri Sanjay Arora. PW1 also

stated that she used to live in the house of accused-appellant as tenant. PW1 proved the FIR (Ext. A-1) and was also cross-examined.

7) PW2 Dr. Manju Rawat, who conducted the medical examination of the victim, stated on oath that she was told by PW1 that rape was committed

with the victim. PW2 further stated that perhaps the rape is from anal region as she was complaining pain on her anal region. It is also stated that

there was tenderness on anal region and the same could have been possible by carnal intercourse. PW2 proved the medical report as Ext. A-4. In her

cross-examination, PW2 admitted that no injury was found on the person of the victim and she could not say authoritatively that victim was subject to

carnal intercourse. The tenderness found on the anal region could have been possible for some other reason also.

8) Mother of the accused-appellant (PW3) though has admitted that on the date of incident, her son Raju was in inebriated state and entered into the

room of complainant, but she did not support the prosecution story and was declared hostile. PW3 was cross-examined. In her cross-examination,

PW3 stated that the accused-appellant was in an inebriated state and was quarrelling with her. However, other facts were denied by PW3.

9) PW5 S.I. G.S. Adhikari investigated the crime and, after completion of investigation, submitted charge sheet against the accused-appellant. Though

PW5 is a formal witness. Though the pajama worn by the victim and underwear worn by the accused-appellant at the time of occurrence, were taken

into possession by the I.O., but the same were not sent for forensic examination.

10) Learned Amicus Curiae for the appellant would submit that the charge sheet was submitted under Sections 377, 511 of IPC and Section 8 of

POSCO against the appellant, but as per the allegations levelled in the FIR, no ingredient of offence punishable under Section 376 of IPC was made

out against the accused-appellant.

11) Learned Amicus Curiae for the appellant drew attention of this Court towards Ext. A-8, i.e., report of the Pathologist Dr. Usha Bhatt. In said

report it has been mentioned that neither live nor dead spermatozoa was seen in the vaginal smear slide taken from the victim. He also drew attention

of this Court towards Ext. K-11, which is supplementary report of medico-legal case of the victim prepared by PW2 Dr. Manju Rawat. On the

strength of said supplementary report it is contended that the same indicates that clothes worn by the victim at the time of occurrence were changed

by PW1. Learned Amicus Curiae for the appellant also contended that no external injury was found on the person of the victim. Labia majora was

found developed and no injury was seen over it. Hymen was found intact and no scar mark or any other obvious injury was found.

12) A perusal of the charge sheet as well as the impugned judgment and order would reveal that learned Sessions Judge, Nainital convicted the

accused-appellant under Section 376(2)(i) of IPC, whereof there was no whisper of alleged rape committed by the accused-appellant on the victim in

the charge sheet. Further perusal of the impugned judgment and order would reveal that learned Sessions Judge without application of mind has

framed the charges in respect to offences punishable under Section 376 IPC and Section 8 of POCSO Act against the accused-applicant and without

appreciating the evidence brought on record, convicted the accused-appellant under Section 376(2)(i) of IPC and sentenced him accordingly, merely

on the contradictory prosecution version and statements of the witnesses, including that of PW3, mother of the accused-appellant, who was declared

hostile by the prosecution.

13) In view of this Court, the prosecution has utterly failed to prove its case under Section 376(2)(i) of IPC against the accused-appellant. Therefore,

the impugned judgment and order is unsustainable in the eyes of law.

14) Consequently, the criminal jail appeal is allowed. The conviction of appellant Raju and sentence awarded against him under Section 376(2)(i) of

IPC is set aside. He is acquitted of the charge framed against him. Appellant is in jail. Let he be set at liberty forthwith if not required in connection

with any other crime.

15) Let a copy of this judgment be sent to the trial court forthwith for compliance. Lower court record be also sent back.