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Raju vs State Of Uttarakhand on 9 May, 2019

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No. 39 of 2013

Raju ……………. Appellant

Versus

State of Uttarakhand ……………. Respondent

Mr. Devesh Upreti, Advocate (Amicus Curiae) for the appellant.
Mr. P.S. Bohara, A.G.A. for the respondent State.

Hon’ble 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
2

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-

3

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, Section511 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.

4

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
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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
6

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, Section511 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
7

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.

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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.

(Lok Pal Singh, J.)

Dt. May 09, 2019.

Negi

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