IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 28 of 2000 Reserved on: August 5, 2010 Date of Decision : September 30, 2010 State of H.P. …Appellant. Versus: Dalbira Khan @ Kala …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. with Mr. Rajesh Mandhotra, Dy. A. G. For the respondent : None Sanjay Karol, J. For an offence, which is alleged to have been committed on 20.7.1998, accused was put to trial. In terms of judgment dated 18.9.1999 passed by the learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 26-ST/7 of 1999 titled as State of H.P. vs. Dalbira Khan @ Kala, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Smt. Vakila (PW-1) and Sh. Salim (PW-2) were married to each other. Due to certain differences PW-1 started living at her parents house in village Missarwala. On 20.7.1998 at about 8.00 a.m., accused Dalbira 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Khan @ Kala who is also her brother-in- law (sister’s husband) came into the Court yard of the house and after holding her took her inside the kitchen there. He removed her salwar and forcibly committed sexual intercourse with her. Though she raised an alarm but no body came to her rescue. Her husband Sh. Salim (PW-2) along with her minor son came at the spot and saw the accused committing the crime. He opened the door of the kitchen and separated the accused from the prosecutrix. At that accused gave beatings to PW-2 who sustained injuries on his private parts. Many people gathered at the spot but accused fled away. PW-1 got F.I.R. No. 316/98 under Sections 452, 376 & 323 IPC registered with Police Station, Paonta Sahib. The prosecutrix was got medically examined by Dr. (Mrs.) Shahida M. Ali, who issued MLC (Ext.PW-5/B). PW-2 was also got medically examined by Dr. Rakesh Kumar (PW-15) who issued MLC (Ext.PW-15/B). The accused was got medically examined by Dr. Subhash Chand (PW-6) and MLC (Ext.PW-6/B) obtained . The clothes of the prosecutrix being Ext.P1, Ext.P2 & Ext.P3 and that of the accused being Ext.P4, Ext.P5 & Ext.P6 were recovered by the police vide recovery memo Ext.PW-3/A. They were sent for chemical analysis and report (Ext.PW-14/B) obtained. Statements of the parties were recorded and with the completion of investigation challan was presented in the Court for trial. 3 3. Accused was charged for having committed offences punishable under Sections 376 & 323 IPC to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 15 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. The accused took the following defence: “The prosecutrix was turned out of her matrimonial house by her husband and for the last one and half month she was residing with her parents. On that day, I visited the house of my in-laws, where prosecutrix was sitting in the kitchen. She called me there and started talking with me. In the meantime, she closed the door of the kitchen. When we were coming out of the kitchen, the husband of the prosecutrix reached there. Suspecting, he stated scuffle with me and also caused injuries on my neck. In the scuffle he might also have sustained injuries. Thereafter, he took the prosecutrix into confidence and lodged a false report against me. I am innocent. I have been falsely implicated in this case.” 5. The court below acquitted the accused of the charged offence, hence the present appeal. 6. In relation to the charge for an offence punishable under Section 323 IPC, statement of PW-2 is evidently clear. It is the case of the prosecution that after PW-2 had separated the accused from his wife, accused hit him on his private parts. In cross-examination, PW-2 admits that he does not know as to whether the accused or his wife had inflicted injuries on his 4 person. Thus in the absence of any clear evidence to the contrary, no case as is alleged by the prosecution can be said to be proved against the accused. 7. As per the prosecutrix on 20.7.1998 at about 8.00 a.m., the accused came to the house of her father. Accused caught hold of her and dragged her into the kitchen, where he removed her salwar and forcibly committed sexual intercourse with her. She raised hue and cry but none came to her rescue. She was alone. While the accused was committing rape, her husband (PW-2) came with their one year old son. Her husband separated the two by pulling the accused and bringing him in the court yard outside the kitchen. There the accused gave beatings to her husband in which he sustained injuries on his private parts. Many people gathered at the spot. After wearing her salwar she went to the hospital along with Mohd. Iqbal (PW-4). She also lodged report with the police. To this extent her version stands corroborated by PW-2. But however we find that their testimonies do not inspire confidence. The veracity of their statements is in doubt. 8. According to the prosecutrix, Missarwala is a big village and densely populated. She had been living in the house of her father for the last two months as she had left her husband’s house due to certain differences. Her father’s house is surrounded by the houses of Sony and Sikh gentleman who lived there with their families. It is her version that for half an hour she violently resisted the acts of the accused with her legs and 5 hands and only thereafter the accused gagged her mouth with his hands and forcibly committed rape. Surprisingly, at that time her cries did not attract any attention of the immediate neighbours though they admittedly were present after the arrival of PW-2. The alleged offence took place at 8.00 a.m. when the families including the male members are present at their houses. There is no explanation as to why the members of her family including her father were not present in the house at 8.00 a.m. Also PW-2 had no reason to be present there at that time. According to her, 50 persons had collected at the spot including the wife of the Sikh gentleman and Sony. Surprisingly, police did not join them in investigation nor has the prosecution examined them in Court. They could have elicited complete truth. 9. Further, the version of the prosecutrix that she had resisted the acts for half an hour is not corroborated by the medical evidence. No injuries were found on her body or on the body of the accused except for small abrasion on his neck. This makes the defence of the accused probable. Had the prosecutrix resisted the advances of the accused he would have sustained injuries in the front portion of his body and not on the rear portion of the neck. Further according to her, PW-2 had become unconscious after he suffered the injury, which version is not corroborated by PW-2. 10. PW-2 has made improvements in his statement. According to him, the accused had gagged the mouth of the prosecutrix with a cloth. Police has not recovered any cloth. It is 6 also not the version of PW-1. According to PW-2, while the accused was lying on the prosecutrix he caught the accused from his hair and pulled his body and brought him outside the kitchen. At that time the accused was naked. According to him it took one minute to separate the accused and his wife. He remained in the kitchen for more than five minutes. He admits that wife of the accused had also arrived at the spot and both the accused and his wife scuffled with him. The accused ran away from the spot after wearing his pant. The aforesaid version is not corroborated by PW-1. 11. For registration of the F.I.R., Sh. Mohd. Iqbal (PW-4) took the prosecutrix to the police station and from there to the hospital for medical check up. Importantly, he admits that the prosecutrix disclosed him about the accused forcibly committing sexual intercourse with her for the first time before the doctor. 12. As per the report of the Chemical Analyst, no semen was found on the clothes of the prosecutrix and the accused. Smear report only indicated presence of semen. The accused is a married lady and as per the doctor the presence of semen can remain for a period of 1½ months to two months. Semen is not proved to be that of the accused. 13. Importantly, the Investigating Officer ASI Prem Dass (PW-14) did not think it necessary to even record the statements of the parents of the prosecutrix or the neighbours. Even though he admits that many persons had collected at the spot. Why no 7 independent witness was associated has not been explained. They would have elicited complete truth. 14. The defence placed by the accused is probable rendering the prosecution version to be extremely doubtful. It cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. 15. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. September 30, 2010. (rana)