Dharam Veer, J.
1. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the consolidated judgment and order dated 12.6.1996 passed by the Additional Sessions Judge/Special Judge (EC Act), Dehradun in Sessions Trial No. 2/1995 and 3/1995 State v. Vijay @ Bhoora, whereby the appellant/accused Vijay @ Bhoora has been convicted under Sections 376 of Indian Penal Code, 1860 (for short, IPC) and Section 25/4 of the Arms Act (for short, the Act) and he was sentenced to undergo five years' R.I. under Section 376 IPC and one year's R.I. under Section 4 read with Section 25 of the Act. Both the sentences were directed to run concurrently.
2. In brief, the prosecution case is that PW3 Naresh Kumar lodged an FIR Ex. Ka-1 on 24.10.1994 at 8.10 pm with PS Bindal, Dehradun with the averments that his mother-in-law Roshni Devi (PW2) was the resident of Indira Colony, Chakkuwala. She had gone on to do the work in the Kothis. She used to return home everyday by 2 pm. As usual, when she did not return till 4.30 pm, then he and his wife Savita gone to search her. When they were crossing the river and was coming towards Doon school, they heard noise coming out of the shrubs. On this they went at the place of occurrence where they saw that Roshni Devi was lying naked and the accused appellant Vijay @ Bhoora having a 'khukhri' was also lying there. The accused appellant stood up immediately and told him by pointing 'khukhri' that if he would approach him then he would kill the complainant by that 'khukhri'. Thereafter he ran away. Upon raising alarm by him, many people of the locality gathered there, who caught hold the accused appellant along with the said 'khukhri' at about 5 pm on the same day. His mother-in-law told him that when she was returning home at about 2 pm, then near the same shrubs the accused appellant caught hold of her and forcibly took her inside the shrubs and forced her to undress herself by pointing 'khukhri' towards her and committed bad work with her and he forcibly made her to stay there till 4.45 pm. It was further averred that thereafter the accused appellant and Roshni Devi were brought to the police station with the help of the villagers. On the basis of this report, chick FIR Ex. Ka-8 was prepared by Constable Clerk Ved Prakash Sharma (PW6). He also made the necessary entries in the GD. Copy of GD is Ex. Ka-9. Investigation of this case was entrusted to SI Ramsurat Singh Yadav. Roshini Devi was medically examined by PW4 Dr. Reeta Dhawan25.10.1994 at 11.30 am, who also prepared the medical report Ex. Ka-4. Supplementary report Ex. Ka-5 was also prepared by the same Medical Officer. The injuries of Roshni Devi were examined by PW5 Dr. Manoj Bahukhandi on 26.10.1994 at 10.25 am, who also prepared the medical report Ex. Ka- 6 and supplementary report Ex. Ka-7. During the course of investigation, the I.O. prepared the fard of recovery of 'khukhri', that is Ex. Ka-3. He also prepared the site plan Ex. Ka-10 of the place of occurrence. He also took the underwear of the accused appellant in possession and prepared a fard Ex. Ka- 11. 'Salwar Kurta' and 'Dupatta' of the victim Roshini Devi were also taken in possession by the I.O. and fard Ex. Ka-12 was prepared. He recorded the statements of the witnesses during the course of investigation and after completing the investigation he filed the chargesheet under Section 376 IPC Ex. Ka-13 against the accused appellant. The I.O. also prepared the site plan Ex. Ka- 14 of the place of recovery of 'khukhri' and filed chargesheet Ex. Ka-15 under Section 25/4 of the Act against the accused appellant.
3. Learned III ACJM, Dehradun, after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 Cr.P.C., committed the case under Section 376 IPC to the Court of Sessions on 3.1.1995. The case under Section 25/4 was also committed to the Court of Sessions. Learned Sessions Judge, Dehradun transferred the case to Additional Sessions Judge/Special Judge (EC Act), Dehradun for disposal according to law. Learned Additional Sessions Judge consolidated the trial of both the cases vide the order dated 7.2.1995.
4. On 7.2.1995, learned Additional Sessions Judge, Dehradun framed the charge against the appellant/accused under Sections 376 IPC. The charge was also framed against the accused appellant under Section 4 read with Section 25 of the Act. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution has examined PW1 Shailesh Kumar, who had scribed the report on the dictation of the complainant; PW2 Roshni Devi, the victim; PW3 Naresh Kumar, the complainant; PW4 Dr. Reeta Dhawan, who examined the victim and prepared the medical report Ex. Ka-4 and supplementary report Ex. Ka- 5; PW5 Dr. Manoj Bahukhandi, who examined the injuries of the victim and prepared medical report Ex. Ka-6 and supplementary report Ex. Ka-7 and PW6 Constable Clerk Ved Prakash Sharma, who prepared the chick FIR Ex. Ka- 8 and made entries in the GD, copy of which is Ex. Ka-9.
6. Thereafter, the statement of the accused appellant was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. In reply to a question, he has stated that prior to 2-3 days of the alleged incident, a quarrel had taken place with the son- in-law (PW3 Naresh Kumar) of Roshni Devi. On 26.10.1994, he was abducted by some people from his house, who after commiting marpit with him put him in jail. However, no oral or documentary evidence was produced in defence.
7. After hearing learned Counsel for the parties and after appreciating the evidence on record, the learned Additional Sessions Judge/Special Judge (EC Act), Dehradun vide his judgment and order dated 12.6.1996 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 12.6.1996, the accused appellant has preferred the present appeal.
8. I have heard learned Amicus Curiae for the appellant and Addl. GA for the State and have carefully perused the entire material available on the record.
9. Before any further discussion, it would be pertinent to reproduce the medical report of victim Roshini Devi, PW2 who was medically examined by PW4 Dr. Reeta Dhawan on 25.10.1994 at 11.30 am, who also prepared the medical report Ex. Ka-4 and the same is reproduced as under:
Gen. Exam.-(1) A bruise of about 1' x .5' present on left side of chest.
(2) A small bruise of 1' x .5' present on left breast. Axillary haris scanty. Pubic hairs cut.
Local Exam.-No mark of injury present on vagina. P/V Vaginal smear taken.
Adv.-X-ray elbow, breast joint, ankle joint and knee joint; AP view.
10. After the victim Roshini Devi was x-rayed, the supplementary report Ex. Ka-5 was also prepared by the same Medical Officer PW4 Dr. Reeta Dhawan and the same is reproduced as under:
All the epiphysis around wrist, elbow, knee and ankle joints are fused to their respective shafts. Conclusion-No definite opinion about age can be given. Patient is above 18 years of age according to X-ray report.
Vaginal smear is negative for spermatozoa.
11. To prove the abovementioned medical report Ex. Ka- 4 and supplementary report Ex. Ka-5, prosecution has examined PW4 Dr. Reeta Dhawan, who has proved the contents of same and has further stated that on the basis of the aforesaid reports, no definite opinion abut the rape could be given.
12. The injuries of Roshni Devi were examined by PW5 Dr. Manoj Bahukhandi on 26.10. 1994 at 10.25 am, who also prepared the medical report Ex. Ka-6 and supplementary report Ex. Ka-7, which are produced as under:
Medical report:
Injuries-(1) Hard scarbed multiple abrasions in an area of 9 cm x 11 cam in the back of right and left side, lower part.
(2) Hard scarbed abrasion 3 cm x 1 cm in size on right scapula 7 cm below right shoulder.
(3) Contusion 5 cm x 2 cm in size, bluish in colour in left upper arm 5 cm below top of left shoulder.
(4) C/o Pain in chest right and left side.
Opinion-Injury No. (1), (2) & 3 are simple, about 72 hours old, caused by impact against hard and blunt object.
Injury No. (4) kept under observation and advised X- ray chest AP view.
Supplementary report:
X-ray report No. 3969/F on 26.10.1994 signed by Radiologist Dr. BC Ramola shows no evidence of fracture is seen on both side chest wall, ribs.
13. To prove the abovementioned medical report Ex. Ka- 6 and supplementary report Ex. Ka-7, prosecution has examined PW4 Dr. Manoj Bahukhandi, who has proved the contents of same.
14. To further prove its case, the prosecution has examined PW1 Shailesh Kumar, who has stated that report Ex. Ka- 1 was scribed by him on the dictation of PW3 Naresh Kumar.
15. PW2 Roshni Devi, the victim has stated that she used to work as a sweeper in the 'Kothis'. The name of his daughter is Savita and PW3 Naresh Kumar is her son-in-law. She herself has got no son. She has further stated that on the date of incident she had gone for on her routine work. Normally she used to go about 8-8.30 am and used to return home 2 pm. On the date of incident, she was returning at 2 pm using the way through the shrubs, where the accused appellant met her. He shut her mouth by his hand and forcibly took her inside the shrubs and committed rape on her. He was also having a 'khukhri'. About 5 pm her daughter and son-in-law (PW3 Naresh Kumar) came on the place of occurrence. The appellant accused also threatened them by showing the 'khukhri'. Thereafter he ran away towards the Indira Colony. People caught hold of him and also beaten him. She also received injuries. Thereafter the accused appellant was taken to police station and report was lodged. In her cross-examination, she has stated that the accused was well known to her before the said incident and he used to visit the mohalla. She has further stated that there were so many houses on the side of river where army officers were residing. Her house was on the other side of river. She has further stated that she reached at the place of occurrence at about 2 pm. All the time people used to cross the river. The way passes near the place of occurrence and people used to come from this way on feet and by bicycle. She herself had taken her clothes off and had put some clothes under her head and some clothes by her side. Accused appellant had also put his clothes under her head. She has further stated that when she was coming to her house on the date of incident from the place of occurrence, 10-15 people were with him. She has also stated that she did not go to the police station to lodge the report.
16. PW3 Naresh Kumar has reiterated the version made
17. PW6 Constable Clerk Ved Prakash Sharma has stated that he had prepared the chick FIR Ex. Ka-8 and also made the necessary entries in the GD, copy of which is Ex. Ka-9. He has further stated that investigation of this case was done by SI Ramsurat Singh Yadav and he was well-acquainted with his writing. He has proved the site plan Ex. Ka- 10, fard recovery of underwear of accused appellant as Ex. Ka- 11, fard recovery of clothes of victim as Ex. Ka-12 and chargesheet as Ex. Ka-13.
18. Thereafter, the statement of the accused appellant was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. In reply to a question, he has stated that prior to 2-3 days of the alleged incident, a quarrel had taken place with the son- in-law (PW3 Naresh Kumar) of Roshni Devi. On 26.10.1994, he was abducted by some people from his house, who after committing marpit with him put him in jail. However, no oral or documentary evidence was produced in defence.
19. Learned Amicus Curiae for the accused appellant argued that on the basis of the evidence discussed above, the prosecution has not proved its case against the accused appellant beyond reasonable doubt. I find substance in the argument of learned Amicus Curiae for the accused appellant for the following reasons:
(i) That as per the prosecution case, accused appellant took Roshni Devi inside the shrubs at abut 2 pm and she remained there along with him for nearly three hour till about 5 pm in the day time. It has also come in the statement of victim Roshni Devi that path close to place of occurrence was very busy one and many people used to cross through that path all the time during the day. Houses of army personnel were also situated there. She remained with the accused appellant inside the shrubs for nearly three hours but she did not made in noise. This conduct of the victim shows that she was a consenting party and remained with the accused appellant inside the shrubs for a long period of nearly three hours out of her own free will and consent.
(ii) That the victim Roshni Devi was about 60 years old on the date of incident and the accused appellant was only 28 years old. These circumstances also create doubt in the prosecution story.
(iii) That as per the Medical Officer PW4 Dr. Reeta Dhawan, who examined the victim, no definite opinion about the rape could be given on the basis of the medical report and the supplementary report. Hence, ocular version is not corroborated by the medical evidence.
(iv) That as per the own statement of victim, the area around the place of occurrence was busy one and people used to cross the way by foot or bicycle. But no one witnessed the alleged incident and the victim Roshini Devi could only be spotted by her son-in-law Naresh Kumar (PW3) after nearly three hours, who allegedly reached at the place of occurrence after hearing her noise.
(v) That in his statement under Section 313 CrPC, the accused appellant has stated that prior to 2-3 days of the alleged incident, a quarrel had taken place between him and the son-in-law (PW3 Naresh Kumar) of Roshni Devi and On 26.10.1994, he was abducted by some people from his house, who after committing marpit with him put him in jail.
(vi) That the only evidence against the accused appellant is the statement of victim Roshini Devi, PW2 and after a careful scrutiny of her statement, it transpires that the same is not believable and reliable piece of evidence and it does not inspire the confidence.
(vii) That the 'khukhri' has been shown to be recovered from the possession of the accused appellant on the same day at the place of occurrence but it was not produced before the trial court, which also creates serious doubt in the prosecution story abut the recovery of 'khukhri'.
20. For the foregoing reasons, prosecution has failed to prove its case against the accused appellant beyond reasonable doubt for the offence punishable under Sections 376 IPC and Section 4 read with Section 25 of the Act and he is entitled to get the benefit of doubt. As such, the impugned judgment and order of the trial court is not correct and justified and the same is liable to be set aside.
21. Resultantly, appeal is allowed. The judgment and order dated 12.6.1996 passed by the Additional Sessions Judge/Special Judge (EC Act), Dehradun in Sessions Trial No. 2/1995 and 3/1995 State v. Vijay @ Bhoora is hereby set aside. Conviction of the appellant under Sections 376 IPC and Section 4 read with Section 25 of the Act is hereby quashed and the sentence to undergo five years' R.I. under Section 376IPC and one year's R.I. under Section 4 read with Section 25 of the Act is hereby set aside. The appellant is on bail. His bail bonds are cancelled. He need not surrender unless required in any other case.
22. Let the lower court record be sent back.