IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 376 of 1999 Decided on : 29.07.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Kishan … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Anil Jaswal Dy. Advocate General. For the respondent : Mr. N.K. Thakur, Advocate. _________________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 15.07.1999, passed by the learned Sessions Judge, Chamba, Division Chamba, H.P, in Sessions Case No. 5 of 1996, acquitting the accused-respondent for the offences under Sections 376 and 506 IPC, in reference to FIR No. 72 of 1995, dated 17.9.1995 of P. S Kihar, Distt. Chamba. 2. The accused-respondent had undergone trial for the aforesaid offences in reference to an incident reported by the victim/prosecutrix, PW-10 that on 16.9.1995, at about 6.30 PM, while she was returning to her house, keeping a bundle of 1 Whether reporters of the local papers may be allowed to see the judgment? 2 fuel wood on her head after grazing the cattle, when reached near Sheru-di-Nali, accused suddenly appeared and threw bundle of fuel wood from her head and dragged her downwards from the path and gagged the mouth of victim with one hand and broke the knot of ‘salwar’ and despite resistance, the victim/prosecutrix PW-10 was sexually assaulted. On making hue and cry, PW-11 Chatro Ram, came on the spot and observed the victim lying on the ground. On reaching home, next day, the victim reported the matter to the police and in that respect FIR was lodged. On investigation charge-sheet was submitted against the accused for the aforesaid offences. 3. In order to prove its case the prosecution has examined as many as 12 witnesses. Whereas, three defence witnesses were presented on behalf of the accused/defence. 4. PW-1 Dr. Mrs. Manju Mittal, Medical Officer, Civil Hospital, Dalhousie, medically examined the victim/prosecutrix aged about 22 years allegedly sexually assaulted and found no mark of any injury or violence on the private parts of victim. However, in view of Chemical Examiner’s report, semen and blood were found on the Salwar of prosecutrix. Therefore, PW- 1 opined that sexual intercourse had taken place with the victim/prosecutrix. PW-2 Dr. Ashok Kaushal, had made an endorsement for medical examination of victim/prosecutrix. PW-3, Shri Narainu, President of Gram Panchayat, Lanot, has 3 stated that the accused was arrested by the police in his presence. PW-4 Dr. C.B.P. Singh, Medical Officer, examined the accused and found that no sign of struggle was present over his body and there was also no tearing of cloth. No female pubic hair was found over or around the genitalia and no staining of semen found present on the private part of the accused or on both the thighs. In cross-examination, PW-4 has stated that the accused told him that sexual intercourse with the prosecutrix was committed by him with her consent. PW-5 Subhash Kumar, H.C, PW-6 Des Raj, Constable, PW-7 Rajinder Kumar, Constable, PW-8 Jeet Singh SI/SHO, PW-9 Gurdev Singh, Head Constable, in their official duty have supported the prosecution case to the extent they were assigned the role. PW-10, victim/prosecutrix has stated that on 16.9.1995, she had gone to Birganti to graze her animals, when she was returning at about 6.00 PM by carrying a bundle of fuel wood collected in the jungle on her head and when she reached Seru-Di-Nali, the accused Kishan suddenly appeared and caught hold of her from backside and pushed her bundle of fuel wood and dragged her downwards the path and despite resistance the accused slapped the face of victim and threw her down on the ground and torn her shirt. PW-10 further stated that despite crying “Bachao, Bachao”, the accused put his one hand on her mouth and broke the string of salwar with other and inspite of resistance and crying the accused sexually assaulted her. 4 However, during that period the wrist watch of the accused was broken and on hearing hue and cry one person Chatro Ram passing to the area came to the spot and lifted PW-10 by holding arms, as PW-10 was naked and crying. Since it was dark, next day the matter was reported to the police by PW-10. The police visited the spot and made usual formalities, took into possession Shirt Ex.P-1 and Salwar Ex.P-2, broken piece of glass of watch of accused as Ex.P-3 and got her medically examined on 18.9.1995. In her cross examination, PW-10 stated that earlier she was married to Raj Kumar, from whom one daughter was born and after that she married Lobhia, in a customary way and thereafter PW-10 married to Roshan Lal. In cross examination PW-10 has further stated that she was caught by the accused from backside and after giving resistance for one hour she was sexually assaulted by the accused. PW-10 has also stated in cross examination that she did not sustain any external injury except blue scars caused on her thigh due to the blows given by the accused at the time of making resistance. PW-10 has further stated in her cross examination that there were 5-6 houses adjoining to her house and Chatro Ram did not come in the house of PW-10 after this incident and on that date her husband Lobhia was away from house. PW-11 Chatro Ram, has stated that on 16.9.1995, at about 6.00 PM, when he was going with his mules to Aghar village and has reached near village Barwari, he heard noise of PW-10 and on enquiry she told that 5 she was beaten by Kishan. At that time PW-11 observed Kishan coming to his village. As per the testimony of PW-11 the victim was standing at that time and was wearing her clothes and she did not tell anything more, as such PW-11 left that place. PW-11 in his cross examination has stated that Lobhia husband of victim cannot walk and see properly. PW-12, Shri Ramesh Kumar, ASI, who has conducted investigation and after visiting the spot prepared the site plan and took into possession Salwar and Kameej of the victim and has arrested the accused, got both the victim and accused medically examined and has endeavoured to support the prosecution case in discharge of his official duty. 5. DW-1, Lobhi has stated that the victim is his wife, while one son about 1 ½ /2 years was born from the lions of one Biju, as DW-1 is too old and is not in a position of procreation of a child. DW-1 has further stated that PW-10 never complained to him regarding any forcible sexual assult with her by the accused. As per testimony of DW-1 the victim/prosecutrix was firstly married to Raj Kumar, then to Sohna and Chamaru and thereafter to Lobhia and at the relevant time the victim was said to be residing with Biju. DW-2 Shri Raj Kumar has stated that the victim was married to him and one daughter was born and thereafter she took divorce and married with Sohna. As per statement of DW-2 the victim has married 7-8 persons and presently she is residing 6 with Biju. As per testimony of DW-2 the victim is not a woman of good character. DW-3 Sohan Lal has stated that the victim was married to him also and after some time she started living with other persons. As per the testimony of DW-3 also, the victim is not a woman of good character. 6. On analysis of prosecution witnesses and material on record, we have noticed that as per the testimony of PW-1, the victim/prosecutrix was sexually assaulted, however, no mark of injury or anything else was noticed, which could indicate that sexual assault on the victim/prosecutrix could be made under resistance. The prosecution version has only been supported by PW-10 (the victim/prosecutrix), PW-11, said to have come on the spot and lifted the victim/prosecutrix by holding her arms in view of testimony of victim/prosecutrix has turned hostile and has not supported the prosecution case. We also take note of the fact that the victim/prosecutrix had married many persons. DWs 1, 2 and 3 to whom she was earlier married have indicated that the victim/prosecutrix was of easy virtue and was not of good character. Endeavoured has been made on the part of defence that the victim/prosecutrix is a woman of easy virtue, as such her testimony cannot be relied upon. 7. In our considered view, no woman, howsoever, liberal she may be, her honour, chastity and privacy cannot be assaulted, in view of law laid down in State of Maharashtra and another 7 vs. Madhukar Naryan Mardikar, AIR 1991 Supreme Court 207. The relevant observations are given as below: “Evan a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when one likes. So also, it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard. At the most, the officer called upon to evaluate her evidence would be required to administer caution upto himself before accepting her evidence.” 8. Learned Sessions Judge has also referred and relied upon the observations of Modi in his Medical Jurisprudence and Toxicology at page 341 in 4th print of 1986 of Twentieth Edition, as follows:- “Under ordinary circumstances it is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses against her will, unless she is taken unawares, thrown accidentally on the ground and placed in such a position as to render her completely helpless or unless she swoons away from fright or exhaustion after long resistance. The act may be accomplished, if more than one man are concerned in the crime , or if the woman is too feeble to resist. In giving a definite opinion, it is necessary to take into consideration the relative strength of the parties and the community to which particularly the woman belongs. It is obvious that a woman belonging to a labouring class who is accustomed to hard and rough work will be able to offer a good deal of resistance and to deal blows on her assailant 8 and will thus succeed in frustrating his attempts at violation. On the contrary, a woman belonging to a middle or rich class of an educated family and not habituated to go about along by herself will not be able to resist for long and will soon faint or will be rendered powerless from fright or exhaustion.” 9. We have scrutinized the testimony of PW-10, victim/prosecutrix, the only testimony supporting the prosecution case and have noticed that in view of her statement given in cross examination the victim/prosecutrix resisted the accused for an hour, which appears to be improbable and despite such resistance no mark of injury or any scratch in view of her own statement was noticed by PW-1. The victim/prosecutrix aged about 20 years in her developed youth could not be said to be sexually assaulted, ordinarily by single person without her consent, the way narration has been made by the victim/prosecutrix (PW-10) herself. 10. On the basis of prosecution evidence and material on record and keeping in view the defence version, the learned Sessions Judge has rightly arrived on the findings that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused, as the testimony of PW-10 the victim/prosecutrix is not inspiring confidence. In the facts and circumstances, we find no merit in the present appeal and the same is accordingly dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. July 29, 2010. (lsp)