STATE OF UTTARAKHAND Vs. A.S. GILL

JUDGEMENT

(1.) THE judgment, against which the appeal has been proposed to be preferred, was passed on 27th February, 2013. Sanction to prefer appeal was given on 2nd May, 2013. The appeal was preferred on 12th November, 2013. Accordingly, there has been 165 days' delay. An Application for condonation of delay has been filed. In that, there is not a single whisper, which can be treated to be sufficient ground for delay. Despite that, we are allowing the Application for condonation of delay.

(2.) WITH the memorandum of appeal, a copy of the judgment under appeal has been annexed. The judgment is in Hindi. We are surprised how the Registry could accept a memorandum of appeal together with a judgment in Hindi. Be that as it may, on 14th November, 2013, we directed the State to file an English translation of the judgment. No attempt has been made by the State to even make an effort to prepare an English translation of the judgment. Ultimately, however, the learned Amicus Curiae has supplied us an English translation of the judgment.

(3.) THE fact remains that the respondent was, alone, charged for having committed offences punishable under Sections 376, 377 & 506 of the Indian Penal Code. The charges were framed on the basis of a charge - sheet submitted by the police upon completion of investigation on a First Information Report lodged by Km. Arti (PW1) on 12th December, 2009 at 22:45 hours. In that, it was alleged that the respondent took PW1 in his car and committed rape behind the workshop of the respondent. Before the charge -sheet was filed, statement of PW1 under Section 164 of the Code of Criminal Procedure was recorded. In that, she stated that the respondent committed intercourse from the front as well as from the back. In course of trial, Dr. R.P. Pande deposed as PW2. According to her, PW1 was brought before her for medical examination at about 02:31 a.m. of 13th December, 2009. From the evidence tendered by PW1, PW2 and Nagendra Prasad Ghildiyal (PW5), who was the Investigating Officer, it came to fore that the alleged incident of rape took place at 07:00 p.m. of 12th December, 2009; the First Information Report was lodged at 22:45 hours, i.e. 10:45 p.m. of 12th December, 2009; and PW1 was medically checked -up at 02:31 a.m. of 13th December, 2009. According to PW2, private parts of PW1 were fully developed; hymen was absent; and there was no injury of any type around private parts and anus part. According to her, two slides were taken from the vagina for examination, two slides were taken from anus for examination and the same were sent to the Pathologist. After pathological examination, it transpired that neither dead, nor alive, sperms were found in any of those slides. According to PW2, PW1 did not indulge in sexual intercourse during 72 hours before her examination. While recording statement under Section 164 of the Code of Criminal Procedure, PW1 held out that the respondent was not previously known to her; and respondent had intercourse also from the back side. Apart there from, she had stated, more or less, what was stated in the First Information Report. While tendering evidence in course of examination -in -chief, PW1 did not utter a word about sexual intercourse from the back side. In the First Information Report, no such allegation was made. She, however, made such statement in cross -examination. In course of tendering evidence, PW1 held out that the respondent was known to her since long; they were initially friends; and, later on, they developed a bondage of love. She said that she wanted to marry the respondent; proposed him to marry; and her family was also eager to bind them in marriage and approached several times the family of the respondent for that purpose. The fact remains that the respondent got married on 22nd November, 2009 and the incident complained of took place allegedly on 12th December, 2009. Vinod Kumar (PW3) is the father of PW1. He stated that he had no knowledge about the love affair between PW1 and the respondent and that he or his family members never visited the house of the respondent with a proposal to give PW1 in marriage to the respondent. PW1, in course of cross -examination, developed, for the first time, a story that the respondent had a friend in the car, who was driving the same. This story did not find place in the First Information Report, in the depositions recorded under Section 164 of the Code of Criminal Procedure or in course of examination -in -chief. In the background of the evidence tendered by PW2 and having noted the evidence tendered by PW1, the court below disbelieved the story made out by PW1 that she was sexually assaulted by the respondent. There is no dispute that, on 12th December, 2009, PW1 was above 18 years of age. Accordingly, the court below has exonerated the respondent.