IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 484 of 1996 Reserved on: April 6, 2010 Date of Decision : May 7, 2010 State of H.P. …Appellant. Versus: Satish Kumar …Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A. G. For the respondent : Mr. Bimal Gupta, Advocate Sanjay Karol, J. The present appeal is directed against the judgment of acquittal dated 14.3.1996 passed by the learned Sessions Judge, Una, H.P. in Sessions Case No. 37 of 1995 under Section 376 of the Indian Penal Code. As per the case of the prosecution, accused is the nephew of the prosecutrix. On 29.5.1995 at about 1.00 p.m., prosecutrix was carrying food for her husband Sh. Sukhdev Singh (PW-2) and other persons who were working at village Amboha. When she reached near the khad (rivulet) in village 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Nangal Jarialan, the accused called her from behind and asked her to hand over the tiffin box which could be delivered by him to her husband. On her refusal to do so, the accused followed her and taunted her by saying “Suna Chachi Tera Ki Hal Hai.” The prosecutrix retorted by asking the accused to mind his business and go his way. Suspecting his ill intention she changed her path and took the path which led to her village through the ‘abadi’ (habitation). Mid way, behind the hedge the accused caught the prosecutrix and threw her on the cow dung. She was also dragged for some distance and given fist blows. Though, she raised alarm but none came to her rescue. Thereafter the accused untied the string of her salwar and forcibly committed sexual intercourse with her. After committing the crime the accused ran away from the spot. The prosecutrix then went to the house of Sh. Daya Ram (PW-3) which was nearby and thereafter to Amboha where she narrated the incident to her husband (PW-2). Both she and her husband then went to meet Shri Gurdev Singh–Panch who advised them to report the matter to the Pradhan of the Panchayat. She narrated the incident also to Sh. Babu Ram (PW-10). The following morning she went to the Pradhan who informed that he would call a Khangi Panchayat and settled the matter within two days. Since the accused was not traceable and nothing was done, the prosecutrix then reported the matter to the police. Her statement (Ext.PA) was recorded on 2.6.1995, on the basis of which F.I.R. (Ext.PG) dated 2.6.1995 under Section 376 IPC was registered with the 3 Police Station Gagret. The police get the prosecutrix medically examined through Dr. Neelam Maria (PW-12) who issued MLC (Ext.PW-12/C). The accused was also got medically examined from Dr. Y. P. Sharma (PW-4) who issued medical certificate (Ext.PB). On further investigation, on the basis of disclosure statement (Ext.PD) made before the police, the underwear of the accused was recovered. The clothes of the prosecutrix as also that of the accused were sent for chemical analyses to the F.S.L., Bharari and the report of the Chemical Examiner (Ext.PW- 12/B) obtained by the police. With the completion of the investigation, challan was presented in the Court for trial and the accused was charged for having committed an offence punishable under Section 376 IPC, to which he did not plead guilty and claimed trial. In all, prosecution examined 14 witnesses. The statement of the accused under Section 313 Cr.PC was also recorded. The Court below acquitted the accused of the charged offence. Hence, the present appeal. The age of the prosecutrix is not in dispute. She is more than 16/18 years. As per the medical evidence, the accused is capable of performing sexual intercourse. This stands proved by Dr. Y. P. Sharma (PW-4). The Doctor (PW-12) medically examined the prosecutrix. According to her the prosecutrix had produced the clothes worn by her at the time of the incident. They were not 4 torn. There were no stains of blood, dust, dirt found on them. Some stains were present on the back portion of the Salwar which was marked by her with pen. Even 2-3 days prior to the incident, prosecutrix was having regular intercourse with her husband, but not after 29th May, 1995. On examination, the Doctor opined as under:- “Examination of victim: 1. A bruise blue in colour present on her right cheek just below the right eye 1.5 cm long, ½ cm wide. Swelling present, underlying bone normal. 2. She was complaining of pain on the neck. On examination no external injury was present. 3. Skin abrasion 3 cm long present on the back in the middle at the level of lower border of scapula. 4. Skin abrasion present on the right side of back 8 cms blow the inferior scapular border. 5. Skin abrasions, 3 in No. each 1 cm in length on lateral side of the right thigh. 6. Multiple small abrasions each about ½ cm on left side of the lower leg on the front side. No injury marks present on forearms, nails, hands. Examination of breast. No injury, scratch marks present on the breast and chest. Examination of Genitals. No pubic hair which were shaven. No stains of semen or blood found on inner side of thighs and genitals. Bo(sic.) brusing, no laceration, no redness on the external genitals. Hymen not present. 5 Examination of vagina. Vaginal walls were normal. No brusing, no laceration, no abrasion of the vagina. Cervic normal No bleeding present. A swab was taken from the posterial fornix and slide prepared and examined under microscope. No spermatozoa were seen. No sign of any veneral infection.” According to her, injuries No. 1 to 6 were simple in nature and were within the probable duration of 7 days. Importantly, the Doctor admits to have scored off her earlier opinion written on MLC Ext.PW-12/C. The scored off portion reads as under:- “On examination found that no rape had been done.” She however explained that the same was done as the report of the Chemical Analyst was yet to come. The report of the Chemical Analyst (Ext.PW-12/B) reads as under:- “Benzedine test was done to examine the blood on exhibits. A. P. Test and micro scopic tests were conducted to examine the semen on exhibits. The results of these tests are as follows:- 1. Both blood and semen were not found on exhibit 1a (shirt) and Exhibit-2 (underwear). 2. Blood was not found on exhibit 1b (salwar). However, human semen was found on this exhibit. 6 3. Human semen was found on exhibit-3 (semen sample).” The Doctor further clarified in her statement that after receiving the report she expressed her opinion that “the possibility of rape cannot be ruled out”. Evidently, the report of the Chemical Analyst does not link the accused to the commission of the alleged offence. Blood and semen was not found on the shirt or underwear. Blood was not found on the salwar of the prosecutrix and the semen found on the other articles has not been proved to be that of the accused. Hence, there was no basis for the Doctor to have so opined. Evidently, the manner in which the opinion has been obtained by the police from the Doctor renders the prosecution version to be doubtful. Further, the Doctor in her cross-examination clarified that it could not be said with certainty that the prosecutrix was subjected to rape and that the injuries were possible even due to scuffle. Most importantly she categorically deposed that her opinion that the prosecutrix had been raped, was more on the basis of the stains found on the back portion of her salwar. Therefore the medical evidence does not support the prosecution. Sh. Manohar Lal (PW-11) who allegedly witnessed the recovery memo (Ext.PD), whereby the underwear of the accused was recovered has not supported the prosecution. He has been cross-examined but without any result. However, 7 without going into the question of veracity of his statement, assuming that the underwear was recovered in the presence of this witness, still this fact by itself does not advance the prosecution case. S/Sh. Ram Nath (PW-6), Brahma Nand (PW-7), Chattar Singh (PW-8), Joginder Singh (PW-9), SI Krishan Chand (PW-14) and Sh. Tara Singh (PW-13) are the official witnesses. This testimony is not of much help. This leaves us with the statement of the other independent witnesses including that of the prosecutrix. Sh. Babu Ram (PW-10), as has been held by the Court below has been introduced as a witness by the prosecution as an after thought. He may be a tutored witness. He was brought from his village to the Court by the prosecutrix and her son who remained all throughout with him till he entered the Court Room. His statement is extremely vague about the date on which the alleged offence was committed or narrated to him by the prosecutrix. He is an Ex-member of the Panchayat. He admits not to have informed the police any time or ever being associated in the investigation. He also admits not to have narrated the incident to anyone. This is not the normal conduct of a public representative who is aware of the consequences of a serious crime. Hence, testimony of this witness does not inspire confidence and cannot be relied upon to hold the accused guilty of the charged offence. In any event, he has not seen the occurrence of the incident. 8 The prosecutrix has categorically deposed that the incident was narrated by her to S/Sh. Daya Ram (PW-3) and Gurdev Singh (PW-5). PW-5 has not supported the prosecution at all. He has been extensively cross-examined and nothing material has come out in his statement. According to him, the prosecutrix had only informed him that the accused had stopped her and did some “Chherkhani” with her. She did not state anything else. At the relevant time he was the Panch and had advised her to approach the Pradhan of the Panchayat. He did not participate in any of the proceedings of the Panchayat. He admits to be relative of both the accused and the prosecutrix. No doubt, he was confronted with his earlier statement (Ext.PD) made before the police and cross-examined by the Public Prosecutor but clarified that having studied only upto 3rd-4th standard he could read Hindi with difficulty and had signed the papers only on the asking of the police. Importantly, this witness was not cross-examined on the point that the prosecutrix did not narrate the incident to him, which in fact is the stand now taken by the prosecution in the Court. Sh. Daya Ram (PW-3) in fact has also not supported the prosecution. He does not even know the accused persons and according to him, Smt. Ram Piari never came to him to report any matter. He was extensively cross-examined and yet nothing concrete has come out in his statement. 9 It is a settled position of law that the conviction of the accused can be based upon sole testimony of the prosecutrix subject however if the same inspires confidence. In the instant case, the offence is alleged to have taken place in a broad day light on 29.5.1995 at a place which was not only in close proximity with the abadi but adjoining to a public path. It is not the case of the prosecutrix that she had been threatened or intimidated by the accused and as a result there of she did not raise any hue and cry. In fact it is her categorical statement that she did raise hue and cry but none came to her rescue. The version does not inspire confidence. As stands admitted by her, which is also evident from the site plan, the field where the offence took place is just adjoining to the path which leads to the village and also the abadi. The prosecutrix admits that the path leading to village Amboha near the houses of S/Sh. Gurdev Singh & Daya Ram, is shorter than the path passing through the Khad. Why she took longer path has not been explained by her. That apart she admits to have carried the food for her husband for the first time. She had not done it earlier. Amboha, as per the version of PW-5 is at a distance of 3 kms. from the house of the prosecutrix and even according to her, her husband had gone to Amboha for the first time. Hence, her version that she was carrying food for her husband does not inspire confidence as she was not even aware about the exact place where her husband was working. She also did not know his employer. Further, she 10 admits that the accused had followed her for a distance of 2-3 furlongs. If that were so, she could have easily gone to the houses of S/Sh. Daya Ram, Gurdev Singh and Shambhu, which were in close proximity of the place of occurrence. Surprisingly, even after the alleged incident she walked for 3 kms. and yet did not inform about the incident to any of the lady members of the houses belonging to the said persons. According to her, the matter could not be reported to the police till 2.6.1995 as it was pending with the Panchayat. Importantly, except for her bald statement there is no other piece of evidence to prove the said fact. Further, it is her case that she went with her son to report the matter to the police. The son has not been examined by the prosecution. Her husband (PW-2) surprisingly did not accompany her to lodge the report. Why would a husband not do anything about the incident is not clear from the record. It has come on record through the version of PW-1 & PW-2 that there was some dispute with regard to the land in occupation of the family of the accused. Hence the possibility of false acquisition cannot be ruled out. To us, her version that she was sexually assaulted without her consent does not appear to be true. Her statement does not inspire confidence. She admits that when the accused pulled the string of her salwar, her one hand was free. She also admits that the accused continued to commit rape for more than half an hour and even at that time both of her hands were free. 11 This totally renders the prosecution story to be untrue. Why did she not resist the assault of the accused at that time has not been explained. It is not that the accused had threatened her with any weapon. She could have easily raised hue and cry even at that time. The incident took place in an open field, in a broad day light where the abadi and public path was nearby. She admits that after she narrated the incident to her husband at Amboha her son continued to work there at the Trolly and only she and her husband went to the house of Sh. Gurdev Singh. This is not a normal conduct of a human being. No son, after hearing the incident of his mother being raped act in such an insensitive manner. Hence to our mind, the testimony of the prosecutrix does not inspire confidence. The Court below has rightly acquitted the accused. For the aforesaid reasons, we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. May 7, 2010. (rana)