Indar Pal v. State of U.P. (now Uttarakhand)

appellant, and learned counsel for the State and perused the lower court record.

#3. Prosecution story in brief is that a first information report is lodged by P.W.1 Devendra Singh on 06.07.1995, with Police Station Kichha stating that his niece Rajvindra Kaur was staying with him but on 04.07.1995, at about noon she has been enticed away by accused/appellant Indar Pal and co-accused Jagjit Singh@ Raju (since deceased). The three were seen going together by P.W. 2 Harbajan Singh and P.W. 5 Nishan Singh. On the basis of said report (Ex. A1) crime no. 304 of 1995, was registered in respect of offence punishable under section 363 IPC, against the aforesaid two accused. 3 Investigation was taken up by P.W. 6 S.I. Virendra Pal Singh Rawat who interrogated the witnesses and started investigation. During investigation the girl (Rajvindra Kaur) was recovered on 08.07.1995. She was medically examined on the very day by P.W. 7 Dr. Shanti Devi and for determination of her age she was referred to the radiologist. P.W. 9 Dr. P.C. Kapri (Radiologist), after radiological examination, gave his report (Ex. A10). On the basis of said report the Gynecologist Dr. Shanti Devi prepared supplementary report on 24.07.1995, and opined that the girl was aged 17 years. On pathological examination, done by P.W. 8 Dr. C.S. Hyanki, no spermotozoa were found in the slides. On conclusion of investigation, the Investigating Officer submitted charge sheet (Ex. A4) against both the accused Indar Pal and Jagjit Singh @ Raju.

#4. The Judicial Magistrate, Rudrapur, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of 4 Sessions for trial. After hearing the parties on

27.11.1995, learned Special Judge/Additional Sessions Judge, Nainital, framed charge of offences punishable under section 363, 366, 376 IPC, against the accused Jagjit Singh @ Raju and Indar Pal. Both of them pleaded not guilty and claimed to be tried. During accused/appellant Jagjit Singh @ Raju died and his case stood abated. Prosecution got examined P.W. 1 Devendra Singh (informant), P.W. 2 Harbajan Singh (who said to have seen the girl going with the two accused), P.W.3 Sarjeet Singh (father of the girl), P.W.4 Km. Rajvindra Kaur (the victim), P.W.5 Nishan Singh, P.W.6 S.I. Virendra Pal Singh Rawat (Investigating Officer), P.W.7 Dr. Shanti Devi, P.W. 8 Dr. C.S. Hyanki (Pathologist) and P.W. 9 Dr. P.C. Kapri (Radiologist). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he alleged that the evidence adduced against him is false. After hearing the parties, the trial court found accused Indar Pal guilty of charge of offences punishable under section 366, 376 IPC, and convicted him 5 accordingly. After hearing on sentence, the convict Indar Pal was sentenced to rigorous imprisonment for a period of five years, and directed to pay fine of ` 5,000/- under section 366 IPC, and rigorous imprisonment for period of three years and directed to pay fine of ` 3,000/- under section 376 IPC. Aggrieved by said judgment and order dated 20.09.2000, passed by Special Judge (E.C. Act)/ Additional Sessions Judge, Nainital, in Sessions Trial No. 447 of 1995, this appeal was filed by the convict before Allahabad High Court. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000. (Central Act, 2000) for its disposal.

#5. Before further discussion this Court thinks it just and proper to mention the medical evidence proved on the record by P.W. 7 Dr. Shanti Devi, P.W. 8 Dr. C.S. Hyanki (Pathologist) and Dr. P.C. Kapri (Radiologist). P.W. 7 Dr. Shanti Devi who examined Rajvindra Kaur (the girl said to have been abducted and raped) has observed in her report dated 08.07.1995 (Ex. A7) 6 that there was no mark of external and internal injury in any part of body. Hymen was torned. She has further observed in her report that exact opinion can be given after pathological examination as the presence of spermotozoa and as to the age opinion can be given after the x-ray report are received. P.W. 8 Dr. C.S. Hyanki, who had proved his report (Ex. A9) has stated that on the slides of veginal smear he did not find any spermotozoa. P.W.9 Dr. P.C. Kapri, Radiologist, has stated that he took x-ray films of the wrist and elbow joint of Rajvindra Kaur. He proved his report (Ex.A10). On the basis of said report P.W.7 Dr. Shanti Devi prepared supplementary report on 07.04.1995, and observed that age of the girl was 17 years. However, P.W.9 Dr. P.C. Kapri in his examination stated that from the x-ray plates it can be said that Rajvindra Kaur could be aged between 17-18 years as the lower end of the wrist had already been fused with ulna.

#6. Now, this Court has to examine whether prosecution has proved charge of offences 7 punishable under section 366, 376 IPC, as against the accused/appellant Indar Pal or not. P.W.4 Rajvindra Kaur is the star witness of this case. She has stated that on the day of incident she was told by accused/appellant Indar Pal and co- accused Jagjit Sing @ Raju (since deceased) that her father had met an accident, on this, she went with them. However, she was taken to Bareilly where she lived for three days. She further told that she was subjected to rape by the two accused.

#7. On close scrutiny of the statement of P.W.4 Rajvindra Kaur this Court finds that her testimony is not trustworthy to hold that the charge of offence is proved beyond reasonable doubt. If she was told by the accused that her father had met an accident, before leaving his uncle's house where she was staying she could have easily told anyone in the family that her father had met an accident. Her grandparents also living in said house. She was left the house without informing anyone for the reasons best known to her. She disclosed nothing to anyone 8 before leaving the house. For two days the family members kept on searching for her. This creates reasonable doubt that she was enticed away in the manner as suggested by the prosecution. Not only this, she has admitted that her father used to live in Amaria. It is also evident from the statement of P.W.3 Sarjeet Singh (father of the girl). It is strange that she had gone in a bus to Bareilly and she did not object to the accused as to why she was being taken to Bareilly instead of Amaria. P.W.4 Rajvindra Kaur admits in her cross-examination that in Bareilly she lived in a crowded area for the reasons best known to her she did not prefer to make any hue and cry nor sought nobody's help that she has been abducted or raped. P.W.7 Dr. Shanti Devi has stated that it appears that one attempt of sexual intercourse has been made with the girl as the tear of hymen was at 6 O clock position with bleeding present. Statement of P.W.4 Rajvindra Kaur shows that she has alleged that accused Jagjit Singh @ Raju (since deceased) and accused Indar Pal committed rape on her. If there was only one act on the part only 9 by one accused as opined by P.W.7 Dr. Shanti Devi, the accused/appellant Indar Pal cannot be held guilty unless the girl (Rajvindra Kaur) makes it clear as to which of the two accused committed rape. The FIR discloses that it was Jagjit Singh @ Raju (since deceased) who enticed her away with the help of the co-accused Indar Pal. The girl has nowhere mentioned in her statement as to which of the two accused first committed rape on her.

#8. In the above circumstances, considering the fact that the girl left her grandparent's house without informing anyone in the family coupled with the fact that she did not raise any hue and cry when she was taken to Bareilly, and further considering the age of the girl and the opinion of the medical officer as discussed above, it cannot be said beyond reasonable doubt that accused Indar Pal enticed away the girl and committed rape on her. Therefore, the appellant is entitled to benefit of reasonable doubt.

#9. Accordingly, the appeal is allowed. 10 Impugned judgment and order dated 20.09.2000, passed by Special Judge (E.C.Act)/ Additional Sessions Judge, Nainital, in Sessions Trial No. 447 of 1995, is hereby set aside. The accused/appellant Indar Pal is acquitted of the charge giving him benefit of reasonable doubt. Lower court record be sent back. Parul (Prafulla C. Pant, J.) 04.09.2012