Rajpal Alias Raspal vs State Of Uttarakhand on 28 August, 2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No.06 of 2014

Rajpal @ Raspal
……..Appellant (in Jail)

Versus

State of Uttarakhand
………Respondent
Date of judgment: 28.08.2017

Mr. Vinod Sharma, Advocate and Mr. Saurav Adhikari, Amicus Curiae for the
appellant
Mr. Raman Kumar Sah, Deputy Advocate General for the State.

Hon’ble Lok Pal Singh, J.

This appeal has been preferred by the convict
through the Jailor, District Jail, Haridwar, against the
judgment and order dated 23.11.2013 passed by IV
Additional Sessions Judge, Dehradun in Sessions Trial
No.23 of 2013, whereby the learned Sessions Judge has
convicted the accused/appellant under Section 376(2)(f)
of The Indian Penal Code (for short IPC) and has
sentenced him to rigorous imprisonment for a period of
eight years with fine of Rs.10,000/- and in default of
payment of fine, further imprisonment for six months
has been awarded.

2. Heard learned counsel for the parties, and
perused the lower court record.

3. Prosecution story, in brief, is that on
27.10.2012 at about 08:45 pm Suraj lodged a report at
P.S. Kotwali, District Dehradun, stating therein that his
mother had gone to Bihar and his sister, aged 6 years,
was alone in the house. At about 5.00 pm, when the
complainant, his uncle and his grandmother returned to
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house, then they heard the voice of his sister
(prosecutrix) from the house of his landlord
(accused/appellant). His aunt Smt. Shanti Devi (P.W.5)
told him that the accused had taken the prosecutrix. The
complainant went at the spot and through a window he
saw that the accused and the prosecutrix both were
naked and that his sister was crying. On the hue and cry
of prosecutrix, many people gathered at the spot and
the accused was caught hold by them. With these
averments, P.W.2 Suraj (complainant) lodged the report
(Ext.A2) alleging that the accused has tried to commit
rape with the prosecutrix. On the basis of report, Chik
F.I.R. (Ext.A9) was prepared and Case Crime No. 47 of
2012 was registered against the accused/appellant
under Section 376/511 of IPC. Investigation was taken
up by P.W.6 Sub Inspector Sushma Rawat, who recorded
the statement of witnesses and the accused, prepared
the site plan, and on completion of investigation,
submitted charge sheet (Ex. A8) against
accused/appellant under sections 376/511 of IPC.

4. Chief Judicial Magistrate, Dehradun, 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 Sessions for trial.
Learned IV Additional Sessions Judge, Dehradun, on
21.02.2013, framed charge of offence punishable under
section 376 IPC, against the accused/appellant Rajpal @
Raspal. The charge was read over and explained to the
accused, who pleaded not guilty and claimed to be tried.

5. The prosecution, in order to prove its case, got
examined P.W.1, the prosecutrix, P.W.2 Suraj
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(complainant), P.W.3 Manoj (eyewitness), P.W.4 Dr.
Vandana Sundriyal, Medical Officer, who medically
examined the prosecutrix, P.W.5 Shanti Devi
(eyewitness), P.W.6 Sub Inspector Sushma Rawat,
Investigating Officer of the case, P.W.7 Smt. Bindu Rana
and P.W.8 Dr. Rahul Joshi, Medical Officer, who
medically examined the accused.

6. The oral and documentary evidence was put to
the accused in the form of questions u/s 313 Cr.P.C.
who, in reply, denied the allegations made against him
and stated that he has been falsely implicated in the
case. He stated that he is landlord and the prosecutrix
and her family members are tenant and they wanted to
illegally grab the house of accused and for this reason he
has been falsely implicated in the instant case.

7. The trial court, after hearing the parties, found
that the prosecution has successfully proved charge of
offences punishable under section 376(2)(f) IPC against
accused Rajpal @ Raspal, and convicted and sentenced
him, as above.

8. Feeling aggrieved by the judgment and order
of the trial court, this criminal jail appeal has been
preferred by the accused through Jailor, District Jail,
Dehradun.

9. Before further discussion, it is pertinent to
mention the medical report of the prosecutrix, who was
medically examined by PW-4 Dr. Vandana Sundriyal, on
28.01.2012 at Doon Medical Hospital, Dehradun. Medical
4

report (Ext.A3) prepared by the Medical Officer is as
under:-

External examination –

– No sign of any external marks of
injury on her body was found.

Locally p/h – no external signs of injury
were present on ……… but hymen was torn and
labia and area around hymen was congested
and reddish. No bleeding..

Impression – No definite opinion could be
made regarding sexual intercourse. Only
congestion around the torn hymen suggests
sexual misconduct or finding.

Definite opinion could only by given after
the reports.

10. P.W.4 Dr. Vandana Sundriyal has stated that
on 28.10.2012 she was posted as Senior Medical Officer
at Doon Women Hospital. She had conducted medical
examination of the prosecutrix and while conducting
medical examination, she had found no external injury
on the body of the prosecutrix. She has further stated
that there were no external injury on the private part of
the prosecutrix but hymen was torn and labia and area
around hymen was congested and reddish. There was no
bleeding. In cross-examination, this witness has
admitted that there was no bleeding on the private part
of the prosecutrix and it is difficult to state that in case
of rape whether bleeding is possible. She has also
admitted that reddishness may also occur due to any
other injury and she had not given her opinion as to how
old reddishness was. She has also stated that besides
above, there was no injury or swelling present on the
body of the prosecutrix.

5

11. P.W.8 Dr. Rahul Joshi is the Medical Officer
who conducted medical examination of accused. He has
stated that on 27.10.2012 he was posted as Emergency
Medical Officer at Doon Hospital. He has stated that
there was no sign of injury on the private part of the
accused. There was no fresh injury on the body of the
accused. In cross-examination, he has stated that he
could not give opinion as to whether the accused has
done sexual intercourse or not.

12. P.W.1 prosecutrix has stated that the accused
had committed rape with her. On her crying, his brother
and uncle had arrived at the spot. She has also proved
her statement (Ext.A-1) recorded under Section 164
Cr.P.C. She has also identified the underwear of the
accused, which was worn by him at the time of incident.
In cross-examination, prosecutrix has stated that on the
date of incident, a quarrel had taken place between his
brother and the accused and her aunt (chachi) had also
come there. She clearly stated that the dispute had
taken place before the incident of rape and his uncle
used to quarrel with the accused before the incident.

13. P.W.2 Suraj is the complainant of the case. He
has reiterated the version of the First Information Report
in his testimony. In cross-examination, he has stated
that he and his parents were tenant of the accused. They
had not paid two month’s rent. He has stated that he
had scribed the report from Rahul, who is also tenant of
the accused.

14. P.W.3 Manoj has stated that on the scream of
Suraj, he has also reached at the spot. He has
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corroborated the statement of P.W.2 Suraj regarding
alleged incident of rape. In cross-examination, he has
stated that on the date of incident, he was on leave and
was on his house. P.W.2 Suraj had also not gone for his
work.

15. P.W.5 Smt. Shanti Devi has stated that on the
date of incident, the accused had taken away the
prosecutrix with him, in her presence. After a while,
Suraj met her and asked about the prosecutrix. In the
meantime, they heard the scream of the prosecutrix, on
which, she, Mukesh, Suraj, Asha Devi and Manoj went to
the accused house. All of them, through a window, saw
that the accused and prosecutrix were naked and the
prosecutrix was lying between the thighs of the accused
and was screaming. All of them shouted on which the
accused worn his clothes and came outside. In cross-
examination, she has stated that complainant is tenant
of the accused and, that on the date of incident, no
quarrel had taken place between Krishna and the
accused.

16. P.W.6 Sushma Rawat has stated that on
27.10.2012 she was posted as Sub Inspector at P.S.
Lakhibag. She was given the investigation of the case.
During the course of investigation, she had prepared the
site plan, recorded the statement of witnesses,
prosecutrix and the accused, and on completion of
investigation, she had submitted charge-sheet against
the accused.

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17. P.W.7 Bindu Rana is Principal of Agnes Kunj
Academy School. She was examined to prove the age of
the prosecutrix.

18. In the backdrop of what has been stated
above, this Court has to deal with as to whether, in the
facts and circumstances of the case, any offence is made
out against the appellant.

19. Before going any further, it would be cite here
the site plan prepared by P.W.6 Sushma Rawat,
Investigating Officer.

lsok dk edku

jktw jke

ckFk:e
B

jkefoykl
A

fnus’k jke

fd’kksjh
vk’kksd

lqjs’k jkenso

uk jkgqy

20. In the site-plan, place of incident where the
accused tried to commit rape is shown by letter ‘A’.
Window from where the complainant and other
witnesses saw the incident is shown by letter ‘B’. From
8

the perusal of the site-plan prepared by the I.O., in my
opinion, it is not possible to see inside the room place ‘A’
from the window ‘B’, which creates doubt in the
prosecution story.

21. Now, coming to the factual matrix of the case.
In the present case, the prosecutrix is a minor girl, aged
about six years. No sign of any external marks of injury
on her body was found. There was also no bleeding
present. In a case of rape with a minor girl, as per
medical jurisprudence, usually following type of cases
are met with by medical officers in their medico-legal
work.

(1) Examination of virgins – for alleged rape.
The person may be a woman or a girl who has
had no previous experience of sexual
intercourse. In these cases, when the first
intercourse takes place, the hymen is torn, the
tear occurring usually on the posterior aspect
on one or both sides. It may also be torn in
the mid-line posteriorly. If the hymen is of the
annular type, the tears may be multiple. This
is so, because such a hymen nearly fully
closes up the vaginal orifice.

If the hymen is of the semilunar type, the
ruptures are usually bilateral posteriorly, and
present the hymen thus torn, in three
segments.

When these cases are brought for
examination soon after the commission of the
act of rape, the hymen is seen with torn
margins, which are red. The surrounding
tissues are tender and swollen. The edges
9

bleed on touching. The torn edges of the
hymen heal quickly, usually within five to six
days. Complete healing is present about eight
to ten days, when, the tears appear shrunken
and like granular tags of hymeneal tissue.
These torn but healed edges never unite.

22. The Court further finds that underwear of the
accused and the clothes worn by the prosecutrix at the
time of incident as well as the bed sheet were sent to
Forensic Science Laboratory for examination and the
report is Ext.A15, but out of four articles, semen was
detected only on Ext.A1, on the underwear of the
accused. It is worth to state here that the I.O. has not
taken the sample of semen of the accused in order to
check as to whether the semen found on the underwear
of the accused belongs to the accused. That apart, no
information has been given in the FSL report as to how
old the semen was, which was detected in the
underwear of the accused. No compliance of Section 53-
A of Cr.P.C. has been made to match the semen of the
accused from the semen found on the underwear of the
accused.

23. In the case of Krishan Kumar Malik vs.
State of Haryana, reported in (2011) 3 SCC (Cri),
Hon’ble Apex Court, has held as under:

“40. The Appellant was also examined by the
doctor, who had found him capable of
performing sexual intercourse. In the
undergarments of the prosecutrix, male semen
were Crl. A. @S.L.P. (Crl.) No.8021 of
2009 found but these were not sent for
analysis in the forensic laboratories which
10

could have conclusively proved, beyond any
shadow of doubt with regard to the
commission of offence by the Appellant. This
lacuna on the part of the prosecution proves to
be fatal and goes in favour of the Appellant.

41. It is pertinent to mention here that
Appellant is a physically handicapped person
to the extent of 55% as per Doctor’s Report,
and this fact is not controverted by the
prosecution. This much of handicap of any
person would be easily noticeable, which
Appellant failed to mention at all. In fact, this
would have been much better identification of
the Appellant, which the prosecutrix did not
mention at all.

43. With regard to the matching of the semen,
we find it Crl. A. @S.L.P. (Crl.) No.8021 of
2009 nd from Taylor’s 2 Edn. (1965) Principles
and Practice of Medical Jurisprudence as
under:-

“Spermatozoa may retain vitality (or free
motion) in the body of a woman for a long
period, and movement should always be
looked for in wet specimens. The actual time
that spermatozoa may remain alive after
ejaculation cannot be precisely defined, but
is usually a matter of hours. Seymour
claimed to have seen movement in a fluid as
much as 5 days old. The detection of dead
spermatozoa in stains may be made at long
periods after emission, when the fluid has
been allowed to dry. Sharpe found
identifiable spermatozoa often after 12
months and once after a period of 5 years.
Non-motile spermatozoa were found in the
vagina after a lapse of time which must have
been 3 and could have been 4 months.”

Had such a procedure been adopted by the
prosecution, then it would have been a
foolproof case for it and against the Appellant.

44. Now, after the incorporation of Section 53
(A) in the Criminal Procedure Code, w.e.f.
23.06.2006, brought to our notice by learned
counsel for the Respondent-State, it has
become necessary for the prosecution to go in
for DNA test in such type of Crl. A. @S.L.P.

11

(Crl.) No.8021 of 2009 cases, facilitating the
prosecution to prove its case against the
accused. Prior to 2006, even without the
aforesaid specific provision in the Cr.P.C.
prosecution could have still resorted to this
procedure of getting the DNA test or analysis
and matching of semen of the Appellant with
that found on the undergarments of the
prosecutrix to make it a fool proof case, but
they did not do so, thus they must face the
consequences.”

24. In the present case, the accused was
medically examined by P.W.8 Dr. Rahul Joshi; however,
no injury was found by the medical officer on the private
part of the accused. The prosecution case rests on
sexual intercourse with a minor girl. In case of rape of a
small child there would have been some injury on the
Appellant’s male organ if he had committed the crime.
Learned counsel for the Appellant has also relied upon a
decision rendered by Hon’ble Apex Court in the case of
Rahim Beg Ors. v. The State of U.P. AIR 1973 SC
343 to contend that in case of rape of a small child there
would have been some injury on the Appellant’s male
organ if he had committed the crime. He has referred
Para 26 of the judgment which is extracted hereunder:-

“26. According to Dr Katiyar, Medical Officer of
District Jail, Rae Bareli, if a girl of 10 or 12
years who is virgin and whose hymen is intact
is subjected to rape by a fully developed man,
there are likely to be injuries on the male
organ of the man. No injury was, however,
detected by the doctor on the male organ of
any of the two accused. The absence of such
injuries on the male organs of the accused
would thus point to their innocence. The
examination of the two accused by Dr Katiyar,
was on August 5, 1969. The two accused,
however, had been arrested, according to the
prosecution, on the morning of August 4,
12

1969. No cogent explanation has been
furnished as to why they were not soon
thereafter got medically examined by the
police.”

25. I have carefully examined the statement of
witnesses and the medical officer who conducted the
medical examination of the prosecutrix. P.W.4 Dr.
Vandana Sundriyal, conducted medical examination of
the prosecutrix and stated that the hymen of the girl was
torn and labica and area around hymen were congested
and reddish. There was no bleeding and injury on the
private part of the victim. The medical jurisprudence
does not support the statement of this witness as well as
the medical report prepared by her. Thus, in my view,
the statement of P.W.4 is not reliable and trustworthy.
The prosecutrix, in her cross-examination, has clearly
stated that on the date of incident, a quarrel had taken
place between his brother and the accused and her aunt
(chachi) had also come there. She clearly stated that the
dispute had taken place before the incident of rape and
his uncle used to quarrel with the accused before the
incident. P.W.2 Suraj, P.W.3 Manoj and P.W.5 Smt.
Shanti Devi seems to be interested and chance
witnesses and all of them have stated in their statement
that the accused was the landlord and the prosecutrix
and her parents was living under the tenancy of the
accused and that there was a dispute regarding rent
between them. Implication of the accused/appellant on
the basis of dispute of landlord and tenant and on the
basis of enmity cannot be ruled out.

26. Having gone through the entire evidence
adduced by the prosecution, it illustrates that the
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prosecution has utterly failed in proving the guilt of the
accused under Section 376 (2)(f) for the reasons
enumerating- firstly, neither any injury was found on the
private part of the prosecutrix nor on the private part of
the accused. Secondly, site-plan prepared by the I.O.
does not support the prosecution story, thirdly, which is
significant and most salient that that the girl in her
cross-examination, has stated that a quarrel had place
between his brother and the accused just before the
incident. Considering all the facets of the case, this Court
is of the view that the prosecution has miserably failed
to proved its case beyond reasonable doubt against the
appellant under Section 376(2)(f) IPC and the trial Court
has erred in law in convicting the accused/appellant
under the said Section.

27. For the reasons as discussed above, the
appeal is allowed. Impugned judgment and order dated
23.11.2013 passed by IV Additional Sessions Judge,
Dehradun in Sessions Trial No.23 of 2013, convicting
and sentencing the accused/appellant under Section
376(2)(f) is hereby set aside.

28. Appellant Rajpal @ Raspal is in jail. Let him be
released forthwith if not wanted in any other case.

29. Let a copy of this judgment be sent to the
Superintendent of jail concerned for compliance and a
copy, alongwith the Lower Court Records, be sent to the
concerned trial Court.

(Lok Pal Singh, J.)
Rajni 28.08.2017

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