HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 5 of 2003 Decided on: 15.12.2011 State of Himachal Pradesh ……… Appellant. Versus Baldev Chand, son of Shri Gopal Ram, Resident of Chakli, Tehsil Sundernagar, District Mandi, H.P. ………Respondent. _____________________________________________________________ Criminal Appeal under Section 378 of the Code of Criminal Procedure against the judgment, dated 22.7.2002, passed by the learned Additional Sessions Judge, Mandi, H.P., in Sessions Trial No.21 of 2001, under Sections 342 and 376 IPC. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondent: Mr.Neeraj Gupta, Advocate. Justice V.K. Ahuja, J.: This is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the Court of learned Additional Sessions Judge, Mandi, dated 22.7.2002, vide which the respondent was acquitted of the charge framed against him under Sections 342 and 376 of the IPC. __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated, the facts of the case are that on 27.2.2000, at about 4 p.m., at a place known as Lohani, the prosecutrix ‘X’ (name not mentioned) met a Police Officer and made a statement which was recorded under Section 154 Cr.P.C. In the said statement, she had alleged that today i.e. on 27.2.2000, she had gone to the forest from her house to collect leaves. She alleged that she is a married woman and at about 11.30 a.m., when she was coming back and reached near Dhogri of the respondent, she demanded a glass of water from him. She took the glass of water and started proceeding and when she carried the load of the leaves, the respondent forcibly dragged her inside the Dhogri. She raised an alarm, but the respondent put his hand on her mouth and bolted the door of the Dhogri. He removed the string of her salwar forcibly, made her to lay on the ground and she raised an alarm, but none was present nearby. She further alleged that the respondent committed sexual intercourse with her against her will and offered her Rs.50/-. She came back to her house and told her mother-in-law Tilku Devi, Member Bali Ram and Pradhan Krishan Chand. Her husband had gone away to attend a marriage. She waited for him and when she came she told him about the occurrence and accompanied by these persons she was coming to report the matter, when the police officer met her and she gave her statement. She was medically examined. On completion of the investigation, the challan was filed before the learned Additional Chief Judicial Magistrate, Sundernagar, who committed the case to the learned Sessions Judge from where the case was assigned to the learned trial - 3 - Court. The accused was tried by the learned trial Court under the aforementioned Sections leading to his acquittal. 3. We have heard Mr.J.S. Guleria, learned Assistant Advocate General for the appellant and Mr.Neeraj Gupta, learned counsel for the respondent, and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that there is no delay in lodging the report since the occurrence had taken place at about 11.30 a.m. and the statement Ext.PW-7/A had been made at 4.00 p.m. when the prosecutrix was proceeding towards the police station. In so far as the age of the prosecutrix is concerned, it is also clear that the prosecutrix was of the age of 19/21 years and as such the question that she was a minor or was below the age of 16 years also does not arise. The only question for determination is as to whether the evidence led proves beyond any reasonable doubt that such an occurrence had taken place. 5. It is clear from a perusal of the statement of the prosecutrix, who appeared as PW-3, that she reiterated the assertions made in the complaint, as detailed above, that she attempted to raise an alarm and also raised an alarm, but none came. However, there are certain factors which cause a dent in the prosecution story and the testimony of the prosecutrix. First of all, she had reported the matter herself, as per her statement made to the police as well as in the court, to her mother-in-law, one Bali Ram, Member of the Panchayat and Krishan Chand, Pradhan. However, the prosecution has not examined the mother-in-law of the - 4 - prosecutrix or the Pradhan Krishan Chand to corroborate her version. 6. The said Member of the Panchayat Bali Ram has been examined as PW-5, who stated that the mother-in-law of the prosecutrix came to his residence during day time and told him that her daughter-in-law has been forcibly raped by the accused. This was contrary to the version of the prosecutrix that she had told this witness and not her mother-in-law. Moreover, PW-5 Bali Ram states that the time when he was told about the occurrence was 9.30 a.m., though the prosecutrix is specific that the occurrence took place at 11.30 a.m. She came back to her house and then told this witness and other witnesses about the occurrence. The prosecutrix had alleged that she had gone to lodge the report accompanied by these persons, whereas PW-5 Bali Ram states that he did not accompany them to report the matter to the police. However, when he reached the house of the prosecutrix, they had already gone to report the matter and he reached the Chowki afterwards. He, however, stated that the Pradhan was already there alongwith the complainant party. 7. Apart from the above, the prosecutrix, though all along, had given the time of occurrence as 11.30 a.m., but when her husband Piar Singh appeared in the witness box as PW-4, he stated that he came back from the marriage and was informed by his mother and the prosecutrix about the rape. However, he is specific that the occurrence had taken place probably at 9.30 a.m. and the prosecutrix told him about the occurrence when he came back. He is specific that - 5 - he does not remember the exact time but it was after 9.00 a.m. and Bali Ram, Member, came to their house after sometime and then they went to report the matter to Krishan Chand, Pradhan, and not that Krishan Chand had come to their house and then they proceeded to the Police Post. He was cross examined and he admitted that he is wearing a wrist watch for the last 2-3 years and is working as a private painter. He has admitted that he is wearing a wrist watch and can read out it to know the exact time. This clearly shows that he is not an illiterate, is working as a private painter, who are more particular about timings and is keeping the watch for the last three years. Therefore, his own statement that the occurrence had taken place at 9.30 a.m. does cast a doubt about the veracity of the statement made by the prosecutrix. He has not stated that he does not remember the exact time, but he repeated it twice that it was about 9.30 a.m. This contradiction is material since it has come up in evidence that for the same day, it is alleged that he had gone to the Dhogri of the accused, gave him serious beatings and a case under Section 325 IPC was registered against him and he is facing the trial at Sundernagar for the said case. This fact that he is facing trial for causing injuries to the respondent has been admitted by him in his statement. It would have been more appreciable if the copy of the report lodged by the respondent or the MLC had been proved in the evidence in this case. However, the accused was not required to prove his defence beyond reasonable doubt and it is sufficient if he was able to raise a doubt in the mind of the court that his version may be correct, which may be true in - 6 - view of the admissions made by PW-4 Piar Singh, husband of the prosecutrix, in his statement. He gave the explanation that the injuries suffered by the accused was the result of beatings given by him as well as due to fall. 8. However, the police official, namely, PW-7 Nand Lal, who recorded the statement of the prosecutrix and accompanied the complainant party, has admitted that one Amar Singh had told him that he received the injuries on his wrist with a danda while saving the respondent. He admitted that there no dispute occurred in between the respondent and the husband of the prosecutrix in his presence. He, however, admitted that the respondent brought to his notice that he suffered injuries due to beatings given by the respondent, which may be multiple injuries and may be bleeding, but for the reasons best know to him, he did not make any entry in the rojnamcha in respect of the injuries suffered by the respondent and as disclosed to him. This can be termed as unfair since at the time of arrest of the accused, if there are injuries on his person, they are required to be recorded and the medical examination of the accused has also to be got conducted for those injuries. Moreover, PW-4 Piar Chand, husband of the prosecutrix, was specific that the injuries have been suffered by the accused at about 10.30 to 11.00 a.m., though he never stated that they had gone at this time to apprehend the accused. The report in question had been lodged at 4.00 p.m. and thereafter they had proceeded to apprehend the accused, which must be after 4.00 p.m. and, therefore, his admission in this regard that these injuries - 7 - were sustained at 10.30 a.m. to 11.00 a.m. was sufficient to cause a dent in the prosecution story. 9. Apart from the above, the prosecutrix admitted that there are 7-8 houses near the Dhogri of the respondent which are at a five minutes walking distance. The Investigating Officer PW-8 Prem Singh, the then SHO, admits that he had not shown the houses of these 7 persons which were situated just close to the Dhogri of the accused. This clearly shows that the investigation was tainted since the Investigating Officer intentionally did not show the houses in the site plan, which was very material. In case the prosecutrix had raised an alarm or cries from the Dhogri of the accused and these houses were at five minutes walking distance only, the persons from those houses could have been attracted to the spot. It is also in the evidence of the prosecutrix that the Dhogri is just near the common path and these facts are sufficient to make her version doubtful. 10. There is another aspect that the prosecutrix had stated that she was dragged by the accused with both hands and was taken to the Dhogri but the Medical Officer PW- 1 Dr.Anupama Sharma, who examined the prosecutrix on the same day and issued the MLC Ext.PW-1/B, did not state that any injuries were found on the body of the prosecutrix as a result of the dragging. The prosecutrix was a woman of the age of 19/21 years and was a married woman, who can understand the purpose as to why she was being dragged and even if her mouth was closed with one hand, her both hands and legs were free to cause resistance and make the attempt by the respondent futile and in the process, she could have - 8 - given tooth bite or other injuries on the person of the respondent to save herself. 11. From the above discussion, it is clear that the statement of the prosecutrix is not such upon which implicit reliance can be placed and the final findings recorded by the learned trial Court leading to the acquittal of the respondent cannot be termed as perverse calling for an interference by this Court. Therefore, the appeal filed by the appellant is dismissed. Bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. December 15, 2011 (V.K. Ahuja), (tilak) Judge.