Uttarakhand High Court
Jai Singh Alias Johny vs State Of Uttarakhand on 14 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 22 of 2016
Bheem Singh Rana ....Appellant
Versus
State ....Respondent
Mr. Tapan Singh, Advocate for the appellant. Mr. D.K. Sharma, Sr. Addl. A.G. assisted by Mr. N.S. Kanyal, Brief Holder for the State.
With
Criminal Appeal No. 19 of 2016
Jai Singh @ Johny ....Appellant
Versus
State ....Respondent
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. I.A. Khan, Advocate for the appellant. Mr. D.K. Sharma, Sr. Addl. A.G. assisted by Mr. N.S. Kanyal, Brief Holder for the State.
Judgment Reserved- 03.07.2017 Date of Judgment - 14.07.2017 Coram: Hon'ble Rajiv Sharma, J Hon'ble Sharad Kumar Sharma, J Per: Hon'ble Rajiv Sharma, J Since common questions of law and facts are involved in the above titled criminal appeals, hence the same are being taken up together and adjudicated by this common judgment.
2. These appeals are directed against the judgment and order dated 08.12.2015, rendered by learned Additional Sessions Judge, Vikas Nagar, Dehradun in Sessions Trial No.84 of 2014, whereby the accused- appellants along with Prakash, were charged with and tried for the offences under Section 376-D of IPC. The accused Jai Singh and Bheem Singh were convicted and sentenced to undergo rigorous imprisonment for a period of twenty years under Section 376-D of IPC and to pay a fine of Rs.15,000/- (each) and in default of payment of fine to undergo simple imprisonment for a period of six months. A 2 sum of Rs.25,000/- was ordered to be paid to the victim from the fine amount. Accused Prakash was acquitted.
3. The case of the prosecution, in a nutshell, is that the victim lodged a report that she was the resident of Peethwali Gali, Village Jamanpur. Her husband was a Driver. On 15.02.2014, she was not feeling well. She went to the doctor's clinic adjoining Johny Property Dealer's shop. The doctor was not present in the shop. The person occupying adjoining shop told her to sit in the shop of property dealer Johny. In the meantime, Bheem Singh and Jai Singh came inside the shop and put down the shutter. Three accused raped her. Thereafter, she went to her home. This incident had happened at 4:00 PM. The FIR was registered. The clothes of the accused and victim were sent for FSL examination. The victim was also examined by the doctor. The prosecution has examined as many as twelve witnesses in its support. The accused have also produced two witnesses DW1 Dr. Dhanwant and DW2 Mukarram. The trial court convicted the appellants namely Bheem Singh Rana and Jai Singh and acquitted Prakash @ Jai Prakash. The accused have been convicted and sentenced, as noticed hereinabove. Hence, these appeals.
4. Learned Advocates for the appellants have vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt against the accused- appellants. Learned counsel appearing on behalf of the State has supported the judgment dated 08.12.2015.
5. We have heard learned counsel for both the parties and perused the judgment and record carefully.
6. PW1 Arvind Singh has deposed that he was working as Head Constable at Police Station Sahaspur. The FIR was registered at the police station. The undergarments of the accused were taken into possession on 20.02.2014.
3In his cross-examination, he has admitted that he did not know the person, who had lodged the FIR. He did not know the timing when the FIR was registered. He has also admitted the vest and underwear of Bheem Singh Rana were produced before him.
7. PW2 Khilona Singh is the husband of the prosecutrix. He was working as a Driver. When he came back to his house, his wife narrated the incident that Jai Singh, Prakash and Bheem Singh Rana have committed rape on her. In his cross-examination, he has admitted that he has not seen the incident. He has also admitted that the report was lodged at the instance of Reeta Sharma and he has added the name of Prakash at her instance. He has also admitted that neither he knew Prakash nor he has seen Prakash committing rape with his wife.
8. PW3 Guddi Devi is the prosecutrix. She has deposed that Prakash has not done anything wrong with her. The appellants have misbehaved and sexually assaulted her. She was declared hostile and was cross- examined by learned Government Advocate. She has categorically admitted that the incident has happened at 4:00 PM. She went to her home. She narrated the incident when her husband came back. She was medically examined. Her statement was also recorded under Section 164 of Cr.P.C. She has specifically mentioned in her cross- examination that her clothes were not taken into possession by the police. She has not handed over her clothes on 16.02.2014 to the police. Her petticoat was produced before the Court. She identified the same. She has also deposed that the contents of complaint were not read over to her. She has admitted the place, as alleged incident has taken place was overcrowded. Many shops were open. The shop, in question, is at a distance of 40-50 4 feet from the National Highway. She has also admitted that her underwear was not taken into possession.
9. PW4 Brijesh Rawat has deposed that he has taken the prosecutrix and accused for medical examination.
10. PW5 Dr. Vandana Tripathi is the material witness. She has deposed that there was no swelling on the body of prosecutrix. There was no sign of any injury. Her private parts were examined. There was no blood or any spoting. She has specifically deposed that, after her examination, it could not be said that she was raped and forcibly assaulted.
11. PW6 Ravi Kumar has deposed that he came back home at 8:00 PM-8:15 PM. He was told by his sister that the accused raped his mother. In his cross-examination, he has admitted that he did not know who have gone to the police station.
12. PW7 Amit Kavi is the formal witness.
13. PW8 Reeta Sharma has deposed that the prosecutrix had come to her on 15.12.2015 to file a complaint. She has written the statement. She has read over the contents to her. She has also admitted that the place of incident was crowded. There were many shops in a single line. These shops were open.
14. PW9 Constable Shyama Rawat has deposed that she has taken into possession the clothes of prosecutrix for medical examination including petticoat and bra.
15. PW10 Constable Dhanveer Singh has deposed that the clothes of accused Jai Singh were taken into possession. On 16.02.2014, the undergarments of accused Prakash @ Jai Prakash were also taken into possession.
516. PW12 Arvind Kumar was the Investigating Officer. He arrested the accused Jai Singh and Prakash. He has signed the memo whereby the clothes of prosecutrix were taken into possession.
17. DW1 Dr. Dhanwant Singh has led his evidence by filing an affidavit. He has deposed in the affidavit that on 14.02.2014, he was in the clinic since morning. He had left his clinic at about 01:00-02:00 PM. He came back at 2:00 PM and has examined patients upto 5:00 PM. No incident has happened with the prosecutrix on 14.02.2014.
18. DW2 Mukarram has deposed that he was the owner of the shop, concerning the case. He was also the owner of the doctor's shop. He has given these shops on rent to DW1 Dr. Dhanwant and Jai Singh. DW1 Dr. Dhanwant was in the clinic between 10:00 AM to 01:00 PM on 14.02.2014 and thereafter between 02:00-05:00 PM. The prosecutrix had not come for medical checkup to Dr. Dhanwant on 14.02.2014.
19. The prosecutrix was examined as PW3. She has not named Prakash in the incident. She has named Jai Singh @ Johny and Bheem Singh Rana. She was declared hostile and cross-examined by the learned Public Prosecutor. She has admitted in her cross-examination that her clothes were not taken over by the police on 16.02.2014. However, according to prosecution, her clothes were taken into possession and produced in the Court. She has deposed that the place, where the incident has happened, was very crowded and the shops were open.
20. PW8 Reeta Sharma has also admitted that the place of incident was very crowded. There were other shops also in a single line. The prosecutrix has not raised any alarm. She should have narrated the incident to the shopkeepers, since the shops were open. The statement of 6 PW5 Dr. Vandana Tripathi is very important. According to her opinion, no rape was committed on the prosecutrix. She has not noticed any swelling on her body. There was no injury on her body. She has also examined her private parts but no blood or any spoting was noticed. She has proved the medical report. The clothes of prosecutrix and the accused were sent for FSL examination, which were marked as Exhibit C5 i.e. petticoat of the victim. However, she has categorically stated that her clothes were never taken into possession on 16.02.2014. No semen was detected on the vest and underwear of accused Jai Prakash. No blood was detected on the vest and underwear of Jai Prakash, vest of Jai Singh, black colour underwear of Jai Singh, petticoat of prosecutrix and bra.
21. PW2 Khilona Singh has deposed that the incident has not happened in his presence. He has also admitted that he made the report at the instance of Reeta Sharma and the name of the accused Prakash was also added at his instance, though, he did not know Prakash.
22. According to the prosecution, the prosecutrix has gone for medical examination. However, the clinic was closed and she has gone to adjoining shop, where she was allegedly raped. DW1 Dr. Dhanwant has deposed in his affidavit that he was in the shop between 2:00 PM to 5:00 PM. The statement of DW1 Dr. Dhanwant has been corroborated by DW2 Mukarram. He has also deposed that DW1 Dr. Dhanwant was not in the shop between 2-5 PM. The prosecutrix was declared hostile. The remaining part of her statement is not supported by PW5 Dr. Vandana Tripathi. According to PW5 Dr. Vandana Tripathi, she was not raped forcibly.
23. In 2017 (6) SCC 1, in the case of "Mukesh vs. State (NCT of Delhi) and others", their Lordships of the Hon. 7 Supreme Court have held that onus of proving guilt is always on prosecution and never shifts even in rape cases. Their Lordships have held as under: -
"382. In a case of rape, like other criminal cases, onus is always on the prosecution to prove affirmatively each ingredient of the offence. The prosecution must discharge this burden of proof to bring home the guilt of the accused and this onus never shifts. In Narender Kumar v. State (NCT of Delhi)200 , it was held as under: (SCC p. 180, para 29) "29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. ... There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt."
24. Accordingly, in view of the observations and discussion made hereinabove, the appeals are allowed. The judgment and order dated 08.12.2015 is set aside. They are acquitted under Section 376-D of IPC. The appellants are in jail. They be released forthwith, if not required in any other case.
25. Let a copy of this judgment along with LCR be sent back to the trial court for forthwith compliance.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) NISHANT