GA/269/2007 of STATE Vs GANESH SINGH AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Govt. Appeal No. 269 of 2007

State of Uttaranchal

.. Appellant.

Versus

Ganesh Singh and three others … Respondents.

With

Criminal Revision No. 214 of 2007

Kalyan Singh

… Revisionist.

Versus

State of Uttaranchal & four others .. Respondents.

Mr. S.S. Adhikari, learned A.G.A. for the State.

Mr. H.C. Bisht, Advocate for complainant/revisionist.

Mr. B.S. Adhikari, learned counsel for accused/respondents

Dated: March 10, 2010.

Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J.

[Per: Hon’ble B.C. Kandpal, J.]

The present Government Appeal and the Criminal Revision have been preferred against the judgment and order dated 04-08-2006, passed by Sessions Judge, Bageshwar, in S.T. No. 29/2004, by which the accused Genesh Singh, Smt. Lachima Devi, Smt. Hema Devi and Harak Singh were acquitted of the charges U/Ss 363, 366, 376, 452, 380, 411, 120-B/34 I.P.C.

2- Briefly stated the prosecution story is that complainant Kalyan Singh lodged written F.I.R. (Ext. Ka.1) against the accused persons at Patwari Chauki Mahrudi, Tehsil Kapkote, District Bageshwar, with the allegations that on 11.6.2004 there was Puja of Waad Devta in Juna Toke and the

family members of the complainant had gone there. The grand daughter of complainant Km. Anita was all alone at his house. At about 4.00 P.M. when the complainant and his wife returned their home they saw that Km. Anita was not there at their house and the locks of three boxes were broke-open and the golden ornaments weighing 14 tola, Rs. 15,000/- cash and blankets were stolen. The complainant searched out for Km. Anita and he came to know that the accused persons abducted her. The Patwari of the Circle on the basis of written F.I.R. prepared the chick F.I.R. (Ext. Ka.7). The investigation of the case was handed over to Suprevisor Qanoongo Danpur, who after completion of investigation submitted charge sheet ( Ext. Ka.15 ) against the accused persons.

3- The Judicial Magistrate Bageshwar vide his order dated 13-10-2004, committed the case to the court of Sessions.

4- The learned Sessions Judge framed charges U/Ss 363, 366, 376 I.P.C. against accused Ganesh Singh, U/S 120-B I.P.C. against accused Lachima Devi, Hema Devi and Harak Singh and also framed charges U/Ss 380, 411 and 452 I.P.C. against all the four accused persons. The accused did not admit the charges and claimed their trial.

5- In support of its case, the prosecution examined P.W.1, Kalyan Singh, complainant, P.W.2, Km. Anita prosecutrix, P.W.3, Dr. Kusum Nariyal, P.W.4, Madan Singh, P.W.5, Prakash Singh, P.W.6, Dr. Chandra Mohan Singh Dhami, P.W.7, Hanif Begh and P.W.8, Daya Chandra Tamta.

6- The accused in their statement U/S 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated due to enmity.

7- The learned Sessions Judge, after hearing learned counsel for parties and considering the entire evidence on record, came to the conclusion that the prosecution has not been successful in establishing the guilt against all the accused and accordingly acquitted them from the charges levelled against them.

8- Feeling aggrieved by the acquittal of the accused persons the State has preferred the Government Appeal and the complainant has also preferred the Criminal Revision.

9- We have heard the learned counsel for the parties and perused the record.

10- The learned Sessions Judge has recorded the finding that the written F.I.R. is not genuine document and reliance cannot be placed on it. The incident is said to have taken place on 11.6.2004 and the written F.I.R. has been lodged on 16.6.2004. The complainant Kalyan Singh (P.W.1) has accepted in his cross-examination that when his grand-daughter Km. Anita came to his home then she narrated the whole story to him and thereafter he got prepared the written F.I.R. and lodged it at the Patwari Chauki. The record reveals that Km. Anita was arrested on 20-6-2004 and she was medically examined on 22-6-2004. Therefore the complainant had no knowledge of the incident

before 20.6.2004 when the prosecutrix was got arrested from Nainital and she was brought to her home. In the aforesaid circumstances the written F.I.R. lodged by the complainant on 16.6.2004 cannot be said to be reliable piece of evidence.

11- The learned Sessions Judge also came to the conclusion that the prosecutrix Km. Anita at the time of incident was major. The prosecution to prove the age of the prosecutrix, has filed High School Certificate of Km. Anita ( Ext. Ka.10), according to which the age of the prosecutrix at the time of incident was 17 years. Dr. Kusum Nariyal, P.W.3, has medically examined the prosecutrix. According to the doctor complete teeth of both sides of Km. Anita had come and this situation develops at the age of more than 18 years. To ascertain the age of the prosecution she was also x-rayed. P.W.6, Dr. Chandra Mohan Singh Dhami took the x-ray of Km. Anita and he prepared x-ray report (Ext. Ka.4). The doctor has opined that the age of Km. Anita was 19 years and there may be difference of 2-3 years on both sides. The learned Sessions Judge also perused the Family Register and Voter List and found that Km. Anita was major. The learned Sessions Judge also recorded categorical finding that according to prosecutrix about seven months prior to instant incident, when she had gone to jungle, accused Ganesh Singh had committed forcible rape upon her and she had not told the said incident to any one. According to P.W.2 Km. Anita the accused Ganesh Singh committed forcible rape upon her at Nainital, Haridwar, Bageshwar and Kapkote but she did not raise any alarm. She also deposed that she had grudge against accused

Ganesh Singh prior to three years of the incident. She also admitted that the S.D.M. had sent her to Women Protection Home and her grand-father had brought her home from there and in the village she was aborted. The trial Judge also came to conclusion that parents of Km. Anita were living at Berinag, Pithoragarh and at the time of incident she was living with her grand-father at village Chutrani and the prosecution did not make effort to prove the actual guardianship of Km. Anita when she was abducted. The learned Sessions Judge also recorded categorical finding that the prosecution has not been able to prove the offences U/Ss 380, 411, 452 I.P.C. also. There is only the unreliable statement of P.W.2, Km. Anita who has deposed about the breaking-open of locks of boxes and theft but no independent witness has been examined. The stolen articles have not been recovered from the accused. In this way the trial court acquitted the accused persons from the charges levelled against them.12- The learned counsel appearing on behalf of complainant has submitted that rape was committed on minor girl and the prosecution case should not have been disbelieved on the plea of delay in lodging F.I.R. In support of his submission learned counsel has cited before us the case of Dildar Singh v. State of Punjab, reported in AIR 2006 Supreme Court 3084.

13- We have gone through the above cited ruling and find that the facts of the case are totally different from the facts of the case in hand. In the cited case the girl was minor below the age of 16 years. She was studying in Class VIII and the

accused was the drawing teacher of that class. In the instant case the prosecutrix was medically examined by Dr. Kusum Nariyal, P.W.3, and she has deposed that complete teeth of both sides of Km. Anita had come and this situation develops at the age of more than 18 years. Further to ascertain the age of the prosecution she was x-rayed. P.W.6, Dr. Chandra Mohan Singh Dhami took the x-ray of Km. Anita and he prepared x-ray report (Ext. Ka.4). According to this doctor the age of Km. Anita was 19 years and there may be difference of 2-3 years on either sides. The written F.I.R. lodged in the instant case is also not authentic. As stated above, according to P.W.1, Kalyan Singh, complainant, he has prepared the written report on the saying of Km. Anita when she returned home after being caught at Nainital. He lodged the F.I.R. on 16.6.2004 and Km. Anita returned home when she was arrested on 20-6-2004 at Nainital. Therefore, the prosecution case is not consistent to the facts narrated by it.

14- Learned counsel for the complainant/revisionist also submitted that prosecutrix was adult and of full understanding and the court should have base conviction on her firm and trustworthy evidence. Learned counsel in support of his submission cited the case of Sri Narayan Saha and another v. State of Tripura reported in (2004) 7 Supreme Court Cases 775.

15- The above submission of learned counsel also does not bear any force. The Hon’ble Apex Court in the above cited case has held that where prosecutrix is an adult and of full understanding,

the court is entitled to base conviction on her evidence unless the same is shown to be infirm and not trustworthy. The Hon’ble Apex Court further held that if the victim does not have strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. As has been held by the learned trial Court, in the instant case, that the deposition of Km. Anita ( P.W.2) is not firm and trustworthy. At one point she has deposed that about seven months prior to instant incident, accused Ganesh Singh had committed forcible rape upon her when she had gone to jungle, but she had not told that incident to any one, and she also deposed that she had grudge against the accused Ganesh Singh prior to three years of the incident. This witness also deposed that on 11.6.2004 at about 12-12.30 P.M. she was all alone in the house. Lachima Devi, Ganesh Singh, Hema Devi entered in her house. Thakur Singh and Narendra Singh were also with them but the names of Thakur Singh and Narendra Singh do not find place in the written F.I.R. This witness also admitted this fact that she was sent to Women Protection Home by S.D.M. from where she was brought her home by her grand-father and thereafter she was aborted in the village. The deposition of this witness does not seem to be firm and trustworthy and consistent to the prosecution story, therefore, the conviction cannot be based on her evidence.

16- Learned counsel for the complainant also submitted that the courts have to display greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on

women, particularly of tender age and children and the learned trial Judge has committed manifest error by acquitting the accused. Learned counsel also cited the case of State of Punjab v. Ramdev Singh, reported in (2004) 1 Supreme Court Cases 421.

17- We have gone through the above cited ruling. It is true that sexual violence is an unlawful intrusion on the right of privacy and sanctity of female and it is serious blow to her supreme honour and offends her self-esteem and dignity, rapist not only causes physical injuries but more indelibly leaves scar on the most cherished dignity, honour, reputation and not the least her chastity and in such cases courts have to display greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children, but the facts and circumstances of the case in hand are peculiar. The prosecutrix P.W.2, Km. Anita has deposed that the accused persons caused her to smell after putting handkerchief at her mouth. She also deposed that accused Hema Devi and Lachima Devi also beat her. She was carried by the accused, from her house, in semi-unconscious state. Had the accused persons abducted the prosecutrix against her will, the prosecutrix would have protested against her abduction and she would have raised alarm at various place where she was carried by the accused Ganesh Singh. According to the prosecutrix she was abducted on 11-6-2004 and she went with the accused Ganesh Singh Bageshwar where rape was committed upon her. On 12.6.2004 she was

brought to Nainital where she stayed in hotel. She deposed that at Nainital she had met to students also. She further deposed that she was beaten by accused Lachima Devi, Hema Devi and Ganesh Singh at Nainital also. Thereafter she was brought to Kapkote where she was medically examined. The prosecutrix has deposed that the accused Ganesh Singh had committed rape with her by giving threats to her life. This statement of the prosecutrix is not trustworthy. If the accused had committed forcible rape upon her, she was not consenting party and she was abducted by the accused against her will then she had full occasions to get rid of the accused by raising alarm and narrating the story to other people, but she has not done so. Her further statement is that about seven months prior to the instant incident, the accused had committed forceful rape upon her when she had gone to jungle but she did not disclose that incident to any one. Thereafter she was admitted at Women Protection Home on the order of S.D.M. From where she was brought to her home by her grand-father and in the village she was aborted. The above conduct of the prosecutrix is unusual and makes her entire testimony unreliable. Km. Anita was medically examined by Dr. Kusum Nariyal, P.W.3 on 22-6-2004. According to the doctor no mark of injury was seen on her private part. Her vagina admits two fingers easily. The doctor also deposed that the last date of menstruation of prosecutrix was 21-02-2004 and at the time of medical examination she was having pregnancy of 18 weeks. Therefore, the medical evidence does not corroborate the version of prosecutrix pertaining to her pregnancy with the accused Ganesh Singh .

18- Thus, in view of above discussion we do not find any infirmity in the conclusion drawn by the learned trial court. The Government Appeal as well as the Criminal Revision filed against the acquittal of the accused persons have no force and they same are liable to be dismissed.

19- Accordingly, the Government Appeal as well as the Criminal Revision, are hereby dismissed. The impugned judgment and order passed by the learned trial court is hereby affirmed.

(Nirmal Yadav, J.) (B.C. Kandpal, J.)

ISB