IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 86 of 1997 Judgment reserved on : 29.7.2010 Date of Decision : September 30 , 2010 State of Himachal Pradesh Appellant Versus Khem Singh 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. Rajesh Mandhotra, Deputy Advocate General, for the appellant-State. For the respondent : Mr. N. K. Thakur, Advocate, for the respondent. Sanjay Karol, J. For an offence, which is alleged to have been committed during the night intervening 26th and 27th June, 1995 accused was put to trial. In terms of judgment dated 11.11.1996 passed by the learned Sessions Judge, Chamba Division, Chamba, H.P. in Sessions Case No. 33 of 1995, titled as State of H.P. versus Khem Singh, the accused stands acquitted of the charged offence. 2. On 13.7.1995 Smt. Bhim Dei (PW-3) lodged a complaint (Ext. PD) with the Superintendent of Police, Chamba that her daughter, Whether reports of Local Papers may be allowed to see the judgment? 2 aged 13 years, is a student of fifth class, Government Primary School Jassurgarh. On 26.6.1995 she went to stay in the house of her friend Kumari Kamali at village Jasssurgarh. At night both the girls slept together on the same cot. In the night accused came drunk and raped her daughter. The incident was narrated to the police at Police Post Nakrode but without any result. The accused threatened of killing both of them. Being a scheduled caste and a poor lady she requested for a suitable legal action. On the basis of this complaint, F.I.R. No. 64/95 (Ext. PS) dated 13.7.1995 was registered with Police Station Tissa under Sections 363, 366, 376, 506 of Indian Penal Code. Head Constable Om Parkash (PW-13) started the investigation. Prosecutrix was got medically examined by Dr. Veena Sehgal (PW-1). Vaginal swab was sent for chemical analysis and report (Ext. PB) obtained. Accused was also got medically examined by Dr. O. P. Puri (PW-6) and relevant medical record taken into possession by the police. To prove the age of the prosecutrix her school record (Ext. PK, Ext. PL, Ext. PM and Ext. PN) was taken into possession by the police. Record of the Panchayat (Ext. PG, Ext. PH and Ext. PJ) was also taken by the police. Statements of the witnesses were recorded. With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 376 of I.P.C. to which he did not plead guilty and claimed trial. 3 4. In order to prove its case prosecution examined 15 witnesses and the statement of the accused under Section 313 was also recorded. The trial court acquitted the accused of the charged offence. Hence the present appeal. 5. According to PW-3 a complaint had been lodged at Police Post Nakrode on 27/28th June, 1995. However there is nothing on record to prove this fact. It is her version that the complaint was scribed by the Pradhan of the panchayat Sh. Subhash Chand (PW-8) and handed over to the police by her. Now PW-8 denies having written any such complaint. Further the police officials namely HC- Om Parkash (PW-13), ASI Sapo Singh (PW-14) and SI/SHO Hirdu Ram (PW-15) categorically deny having received any complaint, written or oral, with respect to the alleged incident. The offence is alleged to have taken place on 26.6.1995. This fact was disclosed by the prosecutrix (PW-2) to her mother on 27.6.1995. Now according to PW-3 she had filed the first complaint and only when nothing happened for 8 to 10 days she lodged the instant complaint (Ext. PD). Still some delay has not been explained. It is a settled position of law that delay in reporting the matter alone may not be fatal but however in the instant case certain doubts about the prosecution case arise. 6. Now as per the version of PW-2 and also PW-3, on the day of the alleged incident she was 13/14 years of age. We find that prosecution has failed to prove the exact age of the prosecutrix. In 4 this regard statements of PW-3, Sh. Gaginder Singh (PW-7), Sh. Sarwan Ram (PW-9) and Sh. Sapo Singh (PW-14) are relevant. 7. As per PW-14 he collected the record pertaining to the date of birth of the prosecutrix from the Secretary of the Panchayat and the Head Master of the school. According to PW-9 the recorded date of birth of the prosecutrix in the school is 15.1.1983. He has produced admission form (Ext. PL), extract of the original register (Ext. PK) and copy of date of birth certificate issued by the Gram Panchayat at the time of admission (Ext. PM). The date was recorded on the basis of this certificate. Now in cross examination he admits that entry recording the date of birth in the admission register is not made by him. He could not state who recorded the same and at whose instance. He admits that document Ext. PK and form Ext. PN which is an extract of the admission and withdrawal register is written in different hands. According to PW-7 the recorded date of birth of the prosecutrix in the Gram Panchayat is 19.7.1982. This is also evident from the extract of the Pariwar Register (Ext. PG). Now this witness admits that entries made are not in his hand. He does not know at whose instance the date of birth was recorded. Importantly he admits that the death of Sh. Raghubir, father of the prosecutrix, is not recorded in this register. Now according to PW-3 her husband had died 10 years prior to the occurrence of the incident. The register can not be said to be maintained properly. Thus not only there is contradiction in the documentary evidence 5 with regard to the exact date of birth of the prosecutrix but also document cannot be relied upon for lack of probative value. 8. According to Dr. Veena Sehgal (PW-1) even though PW-3 disclosed the age of the prosecutrix to be 13 years but however on physical appearance she appeared to be between 13 to 15 years. She admits that in a case of a girl of 13 years of age it is difficult to insert one finger in her private part. However in the case of the prosecutrix she found that two fingers could easily be admitted and that there was no swelling in her private parts. 9. Further according to PW-3 she was married at the age of 15 years. She was married for 20 years. Her first two children were aged 19 and 18 years. The gap between her other children was 2 to 3 years. Thus prosecutrix who is the third child would be nearing 16 years. However to our mind her statement cannot be said to be totally reliable. Prosecution ought to have carried out the Ossification Test to determine the exact age of the prosecutrix. Hence it cannot be said with certainty that the age of the prosecutrix was 16 years as on the date of the alleged offence. 10. As per the version of the prosecutrix on 26.6.1995 she visited the house of friend Kumari Kamali. After having dinner at about 8 p.m. she and her friend slept on the cot in the ground floor of the house. While she was asleep accused caught hold of her salwar and after gagging her mouth forcibly committed sexual intercourse with her. She cried and he went away from there. Her cries attracted the attention of her friend Kumari Kamali who informed her that she had 6 gone inside the house and slept in the kitchen. Prosecutrix narrated the incident to her but she advised not to raise any hue and cry or else she would be defamed. She was consoled that in the morning the matter would be sorted out. In the morning the incident was narrated to the mother of Kumari Kamali, Smt. Bhagtu (PW-11). However she did not respond except for giving a piece of cloth to the prosecutrix for placing it in her private parts to stop the bleeding. Due to forcible rape she was bleeding. She went to the school where she felt pain and after taking leave came back home. There she narrated the entire incident to her elder sister Seema. Her mother who had gone to visit her sister returned back the following day and the incident was also narrated to her. About 12-13 days after the incident she was got medically examined at the hospital at Jassaurgarj and her Salwar (Ext. P1) was taken into possession by the doctor. During investigation police also visited the spot where she had thrown away the piece of cloth (Ext.P2) given to her by PW-11. Police collected the same from behind the bushes. 11. It is a settled position of law that in the absence of any corroboration sole testimony of prosecutrix can be relied upon to hold the accused guilty if the same inspires confidence. However in the present case we find it is not so. 12. Kumari Seema has not been examined by the prosecution. None from the school has also been examined to prove that the following day prosecutrix had attended school and due to pain had left the school early. Even Kumari Kamali has not been examined by 7 the prosecution and her mother Smt. Bhagtu (PW-11) has not supported the prosecution at all. She was declared hostile and inspite of extensive and exhaustive cross examination by the learned Public Prosecutor nothing incriminating has come out in her statement. 13. From the statements of the prosecution witnesses it has come on record that in and around the house of PW-11 there are houses of other persons. Tenants of PW-11 also reside in the same building alongwith their families. In the night other family members were also sleeping in the house. Had the prosecutrix raised alarm they would have certainly attracted attention of the elders present in the house. Importantly prosecutrix admits that prior to the occurrence of the incident she had scuffled with the accused for about 10 to 15 minutes and in this process she sustained scratches on her chest and thighs. Now medical record does not corroborate this fact. Further in Court she has made several improvements from her earlier statement. When confronted with her earlier statement Ext. DA she admits that the fact that they had scuffled is not recorded. She further admits that it was a moon lit night which fact is also not recorded in her statement. She admits that her version that she was treated at the Jassurgarh hospital is also not recorded. Her version that blood stained bedding was washed by the family of Kumari Kamali is also not recorded. 14. Most importantly she admits that she was treated at the Jassurgarh hospital. This falsifies the prosecution version that she 8 was examined for the first time at the hospital at Chamba. Prosecution has concealed this most relevant and material piece of evidence. It would have shown the physical injuries, if any, on the body of the prosecutrix. Further she admits to have taken bath twice and also washed her clothes. This was before she could be examined by the Doctor. Then obviously her version that blood stained clothes were taken into possession by the police is false. Admittedly she did not complain about the incident to her teacher or other friends in the school. Had she been raped she would have been under great trauma and pain. Instead of going to school she would have straight away gone home. Even her sister did not take any action. 15. As per the version of the prosecutrix she narrated the incident to her mother two days after the incident whereas according to PW- 3 the incident was narrated the following day itself. 16. To our mind the statement of the prosecutrix does not inspire confidence and it cannot be said that the prosecution has been able to prove, beyond reasonable doubt, that accused had forcibly committed sexual intercourse with her. 17. PW-3 has supported the version of the prosecution in toto and narrated the version as deposed by PW-2. Now the statement of this witness, to our mind, also does not inspire confidence. There are material contradictions. According to the prosecutrix she was given treatment at the hospital at Jassurgarh which fact stands denied by this witness. Chamba is far off from the place where the prosecutrix 9 resides. In Jassurgarh there is a big hospital. Now if the version of PW-3 is to be believed then why the prosecutrix was not taken to the nearest hospital at Jassurgarh has not been explained. 18. 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 versus 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 (PK)