Suresh Verma vs State Of Uttarakhand

Sharad Kumar Sharma, J

The appellant is a convict for commission of an offence under Section 376 of IPC, which was registered as Case Crime No. 2 of 2015 (Exhibit Ka1), which was registered before the Police Station Kalsi, District Dehradun, wherein, the allegation of commission of offence under Section 376, was leveled against the present appellant. Ultimately, on completion of the investigation by the Investigating Officer a chargesheet was submitted as against the appellant on 14.04.2015 being chargesheet 1 of 2015 (which was on record as Exhibit Ka9 as evidence) and later on, on taking of the cognizance, the said case crime and the chargesheet submitted after investigation by the Investigating Officer the proceedings were registered as Sessions Trial No. 59 of 2015, State Vs. Suresh Verma and ultimately by the judgment impugned dated 22.03.2016 in the present appeal as rendered by the Court of Additional Sessions Judge, it has resulted into the conviction of the appellant by imposition of a sentence of 7 years of rigorous imprisonment and a fine of Rs. 5,000/- has also been imposed upon the appellant.

As per the prosecution story, and the facts which have emerged from records is that an FIR was registered on 16.02.2015 against the appellant, it was to the effect that at about 23 hrs. 20 minutes in relation to an incident, which was narrated therein in the FIR, which is shown to have chanced at about 22 hrs. 30 minutes on 16.02.2015. The FIR, which was registered before the S.H.O., Kalsi, District Dehradun, by the prosecutrix complainant victim Atari Devi, the same has been registered as Case Crime No. 2/2015, registered for commission of offence under Section 376 of IPC, in which the present revisionist was named and is contended of him, to be involved in commission of the offence as narrated in the said FIR. As per the case of the prosecutrix, which she has depicted in the FIR it was to the effect that as on 16.02.2015, when at about 10:30 PM, she has gone on the banks of river Yamuna, to meet her natural calls, it is alleged by her that it was at that point of time the accused appellant Suresh Verma, who was a next door resident of the prosecutrix and is said to have suddenly visited the site of the incident, and in the FIR it was alleged by the prosecutrix that he has by use of force torn her clothes, which was worn by the revisionist at that time and later on by use of force and against her wishes he has committed a rape on her. Thereby had committed an offence of outraging her modesty against her wishes, thus he was liable to be tried for the commission of offence under Section 376 IPC.

In the FIR as registered against the appellant, it was contended by her that when the offence was being committed, she has shouted and raised a voice of alarm and, as a consequence thereto on hearing her alarm, one of her son Ritesh and a friend of Ritesh, Sachin are said to have immediately rushed to the place of incident and it is contended by her that when the accused Suresh Verma, had seen the two boys appearing at the spot, he has fled away from the place and it was further contended by her in the FIR that when Suresh Verma, was trying to make an attempt of fleeing away from the spot in question, in the meantime, Ritesh and Sachin tried to chase him for some distance in order to apprehend him, but they failed in their effort to do so. Consequently, the FIR was registered, and as a result of the registration of the FIR at 23:20 hours, the matter was sent for investigation and the Investigating Officer on conclusion of the investigation, the Investigation Officer had submitted a site plan as regards to the place where the incident has occurred and the position of the accused person, as well as that of the victim in relation to the place where the offence was actually committed, which was adjoining to the Kacha Pathway shown by figure 'B' and 'C' in the site plan. (Exhibit Ka-6), point 'B' of the site plan, shows the place where victim's clothes were torn, and point 'C' in the site plan of the place from where the slippers of the accused is said to have been recovered when he was attempting to flee.

Immediately after the registration of the FIR at 23:20 hours the accused person is shown to have been immediately arrested forthwith at about 23 hours 25 minutes, as it would be apparent from the arrest memo Exhibit Ka 7, which finds place on record in the paper book, which shows that immediately after the registration of the report, even before the police team could be actually activated, it is within 5 minutes thereafter, that the accused-appellant was shown to have been arrested by the police. On culmination of the investigation, the Investigating Officer, i.e. the Sub-Inspector Pratibha, is shown to have examined as many as 9 witnesses during her investigation of crime, and, has submitted her chargesheet on 14.04.2015, which was numbered as Chargesheet No. 1 of 2015, wherein, she has contended that as per the investigation, which was conducted by her, she has tentatively opined that as per the evidence, which was produced before her during the Investigation, in fact it shows that the offence in fact was committed and consequently she has requested for initiation of the proceedings of the trial in relation to the offence, which was leveled against the present appellant.

During the course of investigation, the Investigating Officer is shown to have recorded the statement of the prosecutrix, who has appeared before the learned Trial Court as PW2; Sheru Dass, i.e. the husband of the prosecutrix, who was examined as PW1. Sachin, the friend of the son of the prosecutrix Ritesh has appeared in the witness box as PW4 and they had recorded their statement supporting the prosecution story. Apart from it, the statement of the medical officer Dr. Bharti Balooni, was also recorded who has medically examined the person of the prosecutrix. She has also recorded her statement before the Investigating Officer on 05.02.2006. The samples of vaginal smear as well as the clothes of prosecutrix, which was recovered from the place of incident was made as a case property and it was sent for its FSL examination and a report to that effect was submitted by the Forensic Science Laboratory, Uttarakhand on 26.04.2013, which was on record as evidence (Exhibit 13-A & 13-B). As per the report of the FSL department, i.e. Report No.FSL/17/Bio/2015, it has been reported that the exhibits, which were sent for examination, i.e. exhibit No. 1- the stained pink colour salwar of the victim, exhibit No. 2-the stained yellow coloured printed cloth piece, exhibit No. 3-stained grey coloured underwear of the accused with red and grey elastic, and other samples, which were sent for examination pertaining to the presence of the semen and the consequential report of the blood stains, which were found on the cloth of the prosecutrix, which were the exhibits referred above.

In the FSL report ultimately as submitted on 25.02.2018, it has been reported that on the examination of the exhibits, which were sent before it, no semen was detected from the exhibits, nor even the blood stains could be detected from the exhibits, which were put to examination before the Forensic Science Laboratory. Accordingly, the exhibits after its examination and submission of report were sealed and they were sent back to the court concerned. However, after the submission of the aforesaid reports before the court of Additional Sessions Judge, Vikas Nagar, Dehrardun, and on the registration of the Sessions Trial No. 59 of 2015 'State vs. Suresh Verma' the learned Sessions Court has framed a charge on 22.06.2015 to the following effect:

"यह कि दिनांक 16.2.2015 को समय लगभग 22.30 बजे स्थान निकट यमुना नदी हरीपुर अन्तर्गत थाना क्षेत्र कालसी, देहरादनू में आपने वादिनी श्रीमती अतरी देवी के साथ उसकी इच्छा के विरूद्ध जबरदस्ती बलात्संग किया। इस प्रकार आपने भारतीय दण्ड संहिता की धारा-376 के अन्तर्गत दण्डनीय अपराध किया, जो इस न्यायालय के प्रसंज्ञान में है।"

The Trial proceeded and during the course of trial the husband of the prosecutrix appeared in the witness box and has recorded his statement, but this Court on going through the statement of PW1 Mr. Sheru Dass, the husband of the prosecutrix, nothing much could be extracted in order to substantiate the prosecution story pertaining to the actual commission of the offence by the appellant under Section 376, as against the present appellant. If furthermore the statement of PW1 is taken into consideration, it was nothing but a simplicitor narration of the incident, which was made aware to him by the prosecutrix herself, but as far as the allegations specifically leveled against the appellant it was not being reflected beyond reasonable doubt from the statement and his cross-examination which as recorded before the court below on 27.08.2015 to exactly establish the offence.

What would be important for consideration for this Court in order to scrutinize the sanctity of the incident is, and on which the argument of the learned counsel for the appellant is also centered around, is the interpretation to the statement recorded by the prosecutrix, who has appeared in the witness box as PW2. Counsel for the appellant wants to contend is that if the statement of prosecutrix is taken into consideration in the light of set of allegations leveled in the FIR, which was registered by her, there is an absolute contradiction in the statement recorded by her, because if both are read comparatively, it is revealed that she, in the statement as recorded on 27.08.2015, has stated that after hearing the voice of alarm of the prosecutrix, her son Ritesh and one of his friend Sachin is said to have immediately appeared on the spot and they had got the victim freed from the clutches of the accused person, but in her cross-examination, the prosecutrix during the course of the trial has recorded an absolutely a contradictory statement, which has been made by her, it was to the effect that, when the offence was initially attempted to be committed by the appellant, she became unconscious and she was not in a state of mind to record the allegation, as to whether who was the person who had actually torn the clothes of her and nor she could recognize the person, who had actually committed the offence of rape on her on the date as it has been reported in the FIR. Hence, on a simplicitor reading of the statement of PW2, what is revealed particularly in the statement as recorded by her in paragraph 12, 13 & 14 of the prosecutrix statement, which is quoted hereunder, where she has submitted that some persons has torn her clothes, but she has specifically recorded in her statement that she cannot recognize the person by his face, as she has actually not seen the face of the accused person, who actually raped her:

"12. सशपथ बयान किया कि जिस दिन यह घटना हुई उस दिन यमुना नदी में बहुत अंधेरा था और रात को बहुत ठण्ड थी। यह बात सही है बहुत अंधेरा होने पर किसी व्यक्ति की शक्ल नहीं पहचानी जा सकती।

यह बात सही है कि जिस व्यक्ति ने मेरे कपड़े फाड़े थे मैं उसकी शक्ल मैंने नहीं पहचानी थी।

जिस व्यक्ति ने मेरे कपड़े फाड़े थे उसने मेरे साथ बलात्कार नहीं किया था और न ही गलत कात किया था।"

She had further in paragraph 14 of her statement recorded in her cross-examination before the court below has submitted that the person, who has torn her clothes is not the person, who has committed the rape on her. Hence, if the statement and the cross-examination of PW2 is read in correlation to one another along with the story as narrated in the FIR, there happens to be an apparent massive contradiction pertaining to the manner and the mode in which the offence of rape was actually committed on the prosecutrix, which could lead to any logical inference beyond doubt about the involvement of the appellant in the commission of the offence complained off, because according to the revision of the victim, at the time when the offence, itself was being committed by the appellant as per the allegation of the FIR she was the only person who was present on the spot and it was she only who could have only identified the person, who came on the spot and was involved in the commission of offence, rather to the contrary, her statement runs just contrary to the set of allegation in the FIR, because she has expressed her inability to identify the actual person who has committed rape no her. Even according to the story of the prosecutrix to the effect that when the offence was being conducted she has raises an alarm and consequent thereto, the son of her's has come on the spot and had freed her from the clutches of the accused person, but as far as her son Ritesh is concerned, he was not produced in the witness box to support the prosecution case nor he has recorded his statement by appearing in eth witness box, during the course of trial to substantiate the aforesaid story of the prosecutrix, that he was the person, who was indulged in freeing the prosecutrix from the clutches of the appellant. Further more, the presence of another person, who is shown to be there on the date of the incident it was Sachin, the friend of Ritesh. As far as Sachin is concerned, he too during the course of trial became hostile and he has not supported the story of the prosecutrix or prosecution with regards to the commission of the offence.

At this stage this Court is of the view that it becomes necessary for the court to consider the impact of the statement recorded by the prosecutrix, under Section 164 of Cr.P.C., which finds place as exhibit-Ka 3, which was recorded during the course of trial. As per the statement recorded by her, even under Section 164 of Cr.P.C., she has submitted and made out a new case to the effect that the appellant was the person, who has committed the offence after closing her mouth by putting cloth in it so that she may not raise any voice and raise alarm to the other persons. This statement of the prosecutrix is contrary to the statement as recorded by her as PW2, during the course of trial, wherein, she has submitted that she has, in fact, raised an alarm due to which Ritesh and his friend Sachin on hearing the alarming voice of the prosecutrix had visited the spot. If that be so, then the story which has been narrated by her in her statement in recording her statement as under Section 164 of Cr.P.C. regarding cloth being put in her mouth because of which she cannot raise an alarm she has given just a contradictory stand to the effect that she was unable to speak out on account of her mouth being closed by the convict appellant by putting cloth in it when the offence was being committed by her.

What now becomes relevant for the purposes of determining as to whether the actual offence has been committed by the appellant on the prosecutrix PW2 or not. In that regard, the prime determination, which will now be confined for consideration in order to establish the commission of an offence beyond doubt would be the statement of the doctor, i.e. PW5. The doctor has recorded her statement before the trial Court in her statement as recorded by her on 5.02.2016, she has not supported the prosecution story about the commission of the offence on account of the medical reports of the prosecutrix submitted by the medical officer, which has shown that the prosecutrix on medically being examined and on perusal of the supplementary medical report i.e. Exhibit No. 4B, as submitted that as a consequence of the medical examination it shows that there was no external injury suffered by the prosecutrix on her, or on her private parts of the body in order to show that any force was exercised against her for the purposes of commission of the offence. For the said purpose, it becomes necessary to refer to the medical report, which finds place on record as amongst the exhibits before the learned Trial Court, i.e the supplementary report of the Atri the prosecutrix, which was submitted on 07.02.2015. The report thus submitted records as under:

"1. Haemotological Germinator Hb. ABoRh, RBS, HBsAg with

UPT

Sedid vaginal spear for histopalm regarding presence and absence o spermatozoa."

Even on scrutinizing of the medical report and particularly histopalm spermatozoa report it has been reported that vaginal smear which was examined by the medical officer showed a negative report pertaining to the presence of spermatozoa and further more the U.P.D. report has also showed a negative report on the examination of samples, which could have it proved the contrary would have substantiate the commission of the offence of rape on the prosecutrix, but the medical report as produced by PW5 showed negative presence of spermatozoa.

The opinion ultimately, which has been expressed by the medical officer after physically examining the prosecutrix, as submitted by her, i.e. paper No. 8ka 4, she has opined ultimately that on the basis of the examination of vaginal smear and histopalm report, there is no symptom reported regarding the presence of the spermatozoa she has opined that after the clinical finding as given by the experts no definite opinion of rape could be made out.

Even in the statement, which was recorded under Section 313, the accused appellant herein has categorically denied with regards to the occurrence and the incident and his involvement in the crime, which was alleged to have been committed by him in the FIR, and as developed by the prosecution story and as it is contended that the entire narration of allegations cannot be sustained because its not the case of the prosecution that the appellant ewas not known to the family of the prosecutrix and since he being a resident of the neighbourhood he was very well known to the family members of the prosecutrix and hence his involvement in the commission of the offence would have also be proved by the surrounding circumstances or any prior incident of enmity or misunderstanding between the families, which is not the case pleaded or proved or established by any evidence. Rather to the contrary the statement, which has come on record of the prosecution witness, it goes to show that the appellant since was well acquainted with the family and the appellant often used to visit the family of the prosecutrix and, hence, also the appellant contends that in such type of a family relationship with the neighbour there is a bleak possibility of commission of the offence under Section 376 and further more this Court is of the view that if there was any remotest possibilities of his indulging in commission of offence, since being the neighbour, the prosecutrix could have easily identified by the appellant by his body language or his voice at least.

On the aforesaid backdrop, the learned Sessions Court heard the parties to the proceedings and by the judgment dated 22.03.2016 had convicted the appellant for commission of the offence under Section 376 of IPC consequently sentencing him to undergo 7 years of rigorous imprisonment and a fine of Rs. 5,000/- has been imposed on him. The finding as recorded by the learned Trial Court would not repose much confidence for the reason that if the entire judgment of the learned Sessions Court is taken into consideration, it is simplicitor based upon the statement, which has been recorded by the prosecution in support of their case to show the actual involvement of the appellant in the commission of the offence, but as far as the oral testimony with regards to the statement of the prosecutrix herself and her statement in cross-examination and also with regards to the statement of the doctor, which goes to show that in those circumstances or in those cases where there cannot be any direct witness to show the establishment of the commission of the offence and further more when the other surrounding witnesses or evidence adduced always place a pivotal role to determine the actual involvement of the accused person in commission of the offence.

In the case at hand those surrounding circumstances or evidences, which ought to have been taken into consideration by the learned Sessions Court for sentencing the appellant for the offence under Section 376, it would have been on consideration of evidence in its entirety, for example, the report of the Forensic Science Laboratory, which has opined in negative with regards to the presence of spermatozoa on the clothes recovered from the site in question, the report of the medical officer, which too has not supported the prosecution story and has expressed its opinion in negative that any offence of the nature under Section 376 was ever committed on the prosecutrix, and further more if the statement of the medical officer, who has examined the prosecutrix is read in correlation to the medical report of the doctor herself and in particular the report submitted here, who has appeared in the witness box, she has definitely opined that on a conjoint scrutinization of the medical report submitted by her and her statement no definite opinion of rape could be made out as against the present revisionist.

Owing to the aforesaid reasoning sentencing a person for commission of heinous offence of a nature under Section 376, it has had to be on the basis of unflinching and determined case, which on appraisal of the evidence both oral and documentary only when it would have shown that there was a direct indulgence or involvement of the appellant in the commission of the offence and the prosecution case was not proved beyond doubt. There is no such direct witness or evidence, which was produced by the prosecution to show that the appellant was actually proved to be involved in the commission of offence except that the surrounding circumstances, which has been narrated by the prosecutrix in her FIR and the statement, which too if it is read harmoniously with statement under Section 164 also, they are in massive contradiction to one another because when the prosecutrix herself has contended that at the time when the offence was being committed, she fainted, and in that eventuality, her statement made in the FIR that it was the appellant, who has committed an offence, cannot be sustained and, hence, much reliance cannot be placed on it. Because if she has fainted she could not have recognized the appellant simultaneously when she was in a fainted state.

Another important aspect which also creates a bonafide doubt is as to the manner in which the prosecution has proceeded to conduct the trial and investigation, the said reasoning is from the view point that the hastiness with which the police has arrested the revisionist. If the incident itself happens to be of 22 hours 30 minutes and the FIR thereafter was shown to have been registered on 23 hours 20 minutes, there is remotest possibility that the convict-revisionist could have been arrested within five months of the registration of the FIR even before officially the police party was actually activated by any official order, as would be apparent from arrest memo, i.e. even before the actual offence was registered and the police party was in fact or could have been actually activated to conduct the investigation or to apprehend the accused person. Thus, on a conjoint reading of the evidence, which was produced before the court below and the manner in which the session trial has exclusively based their judgment on a wrongful appreciation of the evidence, which was brought on record, particularly the medical report and its misreading of the statement of prosecutrix, the conviction of the appellant could be definitely said that it was based on a hearsay appreciation of the evidence, hence, the sentence of conviction for offence under Section 376 of IPC cannot be sustained.

Consequently for the aforesaid reason, this appeal is allowed. The impugned order of conviction under challenge in the Jail Appeal is quashed. The appellant is exonerated of the offences, which is said to have been committed by him. The appellant who is serving the sentence is directed to be released forthwith.