State Of Uttarakhand vs Sheetal Kumar
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     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
      Government Appeal No. 77 of 2013

State of Uttarakhand                           ... Appellant

                            Versus
Sheetal Kumar                               ... Respondent

     Mr. Amit Bhatt, Deputy Advocate General, for
     the State/appellant.
     Mr.   Parikshit   Saini, Advocate, for   the
     respondent.

                               Judgment reserved on: 21.8.2023
                            Judgment pronounced on: 12.9.2023


Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

(Per: Hon'ble Manoj Kumar Tiwari, J.) State has filed this appeal, by leave, challenging the judgment and order dated 8.8.2012, passed by 4th Additional Sessions Judge, Haridwar in Sessions Trial No. 332 of 2005, whereby respondent has been acquitted of the charges punishable under Sections 354, 376/511 IPC.

2. Prosecution story, in nutshell, is that complainant's daughter (victim) was studying in Class IV-C in Siksha Niketan School, B.H.E.L. On 8.4.2004, her grandfather dropped her in the school at 7.20 AM. At around 10.30 AM, Headmistress telephoned in the victim's house and informed that one person came in the school and did obscene act with the victim, outraged her modesty and tried to commit rape on her. At that time, all other students except the victim were attending prayer outside. When the victim raised the alarm, school staff reached at the spot and then that

person fled away from there. On this information, father and grandfather of the victim reached at the school at around 12.30 PM and when they were coming along with the victim to their house, the victim identified that person, who was found travelling on the road and who disclosed his name to be Sheetal Kumar. Thereafter the complainant (PW1) and his father (PW7) with the help of Lahri Singh Saini (PW2) and Satyaveer Singh (PW3) apprehended the accused at around 12.45 PM and they took him to the police station and the report was lodged.

3. In the present case, prosecution has examined nine witnesses. As regards the status of witnesses, PW1 is complainant and father of victim, PW6 is victim herself and PW7 is victim's grandfather. All three have supported the prosecution version. However, PW1 and PW7 happen to be hearsay witnesses. PW2, PW3, PW4 and PW5 are independent witnesses and none of them supported the prosecution story and declared hostile. PW8 is a formal witness, who prepared the chick FIR, and PW9 is the Investigation Officer.

4. In his statement under Section 313 CrPC, the accused stated that he was working as contractor; complainant was also working as contractor and he has fallen victim of false implication in the background of the fact that there was some strained relationship between him and the complainant due to dispute over

some amount of money. In defence, DW1 Basant has been examined.

5. After appreciating the evidence, learned Trial Court held the accused not guilty and acquitted him. In holding so, the Trial Court appears to have been prompted by the following considerations which Mr. Parikshit Saini, learned Counsel for the accused, has also highlighted:

(i) PW6 (victim) is the sole witness of the alleged incident and though she supported the prosecution version, however, there are serious discrepancies in her statement and to that of PW1 (complainant) and PW7 (victim's grandfather).

              (ii)      There     is   no     corroborative
evidence on the record.
              (iii)     Prosecution       examined       four

independent witnesses, namely, PW2 Lahri Singh, PW3 Satyaveer Singh, PW4 Rakesh Kumar and PW5 Naresh Kumar. Out of these four witnesses, PW4 and PW5 are school staff and PW4 was present on duty at the school gate at the time of alleged occurrence. None of the independent witnesses supported the prosecution version and declared hostile. All of them stated that they did not know the accused and never saw him before.

(iv) Principal of the school, who telephonically gave information of the alleged incident in victim's house, has not been examined.

(v) The accused was described to be an UNKNOWN person, however, from the evidence on record, it is proved that accused and complainant knew each other quite well and they were working together as contractor.

(vi) Presence of the accused at the place of occurrence could not be proved.

(vii) Prosecution did not offer any explanation as to why the prosecutrix did not join other children in prayer and remained alone in her classroom.

(viii) Why the prosecutrix allegedly told about the incident only to her Principal, and not to her class teacher or any other teacher who came to take other classes on that day?

(ix) It is not clear from the evidence that at what time the prosecutrix informed about the incident to her Principal.

(x) Conduct of the victim after the alleged incident is not natural inasmuch as it was such a serious offence and yet, after the said incident, she remained in the school, did not tell anything to her fellow students or any teachers and continued to attend all her periods as usual.

(xi) There are discrepancies in the evidence regarding lodging of the report and the arrest of the accused.

6. We have carefully examined the evidence on record. In the instant case, victim is a child in the school, a student of Class IV. Time of alleged occurrence is 7.30 in the

morning and place of occurrence is a school, to which the accused is not related in any way. Prosecutrix has supported the prosecution case in affirmative. However, learned Trial Court noted serious discrepancies in her testimony and also in her conduct soon after the incident and after considering other evidence, concluded that she is not a witness for the truth.

7. It is indeed a settled law that in a case of rape, victim's statement could be the sole basis of conviction, but if there is some doubt then corroboration is required. The victim (PW6), in her examination-in-chief, states that in the morning hours on 8.4.2004, her grandfather dropped her in the school; other children were attending the prayer; at that very time, one person came and sexually assaulted her; when she raised the alarm, school children came and on seeing them, the accused fled away. She further states that Principal informed about the incident and then her father and grandfather came to school at about 11-12 AM and when she was going to her house along with them, she saw the accused in the way and identified him, who was apprehended then and there and thereafter he was taken to the school.

8. In her cross-examination, victim states that on the date of occurrence, school timing was from 7.30 AM to 12.30 PM and she reached school at 7.20 AM. However, she did not go to attend the daily prayer, whereas all

other children went to do so. There is absolutely no explanation as to why she did not join other children in the daily prayer and remained seated in the classroom. Victim further admits in her cross-examination that she attended all the classes till 12.30 PM and that her father and grandfather came to receive her at 12.30 PM. However, in her examination-in-chief, she says that they came at about 11 AM to 12 PM. Further, it has been stated in the FIR that after apprehending the accused, he was taken to the police station and FIR was lodged, whereas in the testimony of PW1, PW6 and PW7, it has come that after apprehending the accused, he was taken to the school. Complainant (PW1) claims that he lodged the FIR at 1.45 PM on 8.4.2004, whereas victim states in her cross-examination that her father did not go to the police station to lodge the report as the matter was already reported by the Principal and her father remained in the house. Complainant (PW1) states in his examination-in-chief that her daughter (victim) had narrated the incident to him, however, the victim in her cross- examination has categorically stated that she never narrated the incident to her father as she is not frank with him, and that she narrated it only to her grandfather. Victim has also admitted in her cross-examination that police did not enquire anything from her, whereas Investigation Officer (PW9) has stated in his testimony that he had recorded the statement of victim.

9. Furthermore, it is the case of prosecution that the accused was unknown to victim and her family, however, we gather from the evidence on record that accused was known to them and apart from DW1, victim herself has admitted in her cross-examination that the Mohalla in which she has her relative and house of her Mausi is also situated there, the accused lives in that very Mohalla. Victim has also admitted that her father works as contractor.

10. Thus, learned Trial Court has rightly held that there are serious discrepancies and contradictions in the evidence adduced by prosecution, regarding the manner in which the alleged occurrence took place, about the presence of accused at the place of occurrence, as to how the victim was rescued and accused had fled away, the manner in which the accused was apprehended and also about the manner in which the information regarding alleged incident was communicated to victim's family and also the conduct of the prosecutrix soon after the occurrence. It is strange that despite the incident, which was reported to the Principal, the victim attended all her classes as usual when she was still under the trauma of sexual assault, although her house was situated at a distance of half a kilometer from the school. There is no independent witness to prove presence of the accused inside the classroom. Entry to the school campus was

restricted through one gate, where watchman was posted. There is no medical evidence to support the prosecution case, as victim was not medically examined.

11. As regards the motive, we have already discussed that although complainant and victim knew the accused, yet they described him as an unknown person, which casts serious doubt on the entire prosecution story. Furthermore, DW1, who is common and close relative of both accused and complainant, has stated that complainant and accused used to work together as contractor and there was enmity between them over a sum of rupees forty thousand, and there is no denial of the statement of DW1 by the prosecution.

12. All these facts coupled with the aforementioned discrepancies in the testimony of prosecution witnesses run counter to the evidence of the prosecutrix. The above analysis of the evidence shows that prosecution has miserably failed to prove its case beyond all reasonable doubt.

13. Consequently, we see no reason to disagree with the view taken by the Trial Court. The impugned judgment and order does not suffer with any illegality or infirmity and the same is affirmed. The government appeal fails and is dismissed.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) Pr