IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No.363 of 1999 Reserved on : 12th July, 2010 Date of Decision: 21st ctober, 2010 State of Himachal Pradesh Appellant Versus Vikas @ Billu and another Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Vivek Thakur, Addl. Advocate General. For the respondent: Mr. Ashwani K.Sharma, Advocate, for respondent No.1. Mr.Anuj Nag, Advocate, for respondent No.2. Sanjay Karol, J. For an offence, which is alleged to have been committed on 24.5.1999, accused were put to trial. In terms of judgment dated 25.5.1999 passed by Sessions Judge, Kangra at Dharamshala in Criminal Case No.36- K/VII/98(29/97), titled as State of H.P. vs. Vikas alias Billu and another, accused stand acquitted of the charged offence. Whether the reporters of Local Papers are allowed to see the Judgment? 2 2. Shri Satish (PW-8) son of Shri Inderjeet got FIR No.233/97 dated 24.5.1997 (Ext.PW-8/A) registered with Police Station, Kangra, H.P. under Sections 363, 366 and 506, IPC. With the registration of FIR Shri Mohinder Singh (PW-16) commenced the investigation. As per the version of the prosecution, prosecutrix (PW-15) who was 14 years of age, during summer vacation had come from Delhi along with her mother Smt. Usha Sawhni (PW-13) to stay at the house of her grandfather (Sh.Jagdish) at Kangra. Prosecutrix is a deaf and dumb child and speaks through sign language. On 24.5.1997, prosecutrix had gone to see a movie in a Video Hall, located in the upper storey of the shop belonging to PW-8, who is her uncle. Video Hall was owned and run by Shri Kulwinder (PW-12) . At about 2 p.m., PW-13 realised that prosecutrix was not at home, therefore, she came to the shop of PW-8 to search for her. She was told that the prosecutrix had gone to see a movie at “Shintu Video Hall”. PW-8 looked for her in the Video Hall but was not there. Then PW-8 and PW-12, on a motorcycle went to search for the prosecutrix at the house of a relative Smt. Neelam Bhasin, She was also not there. However, while standing in front of her house they heard a peculiar kind of voice identified to be that of the prosecutrix, coming from a direction of Shail Hotel. This hotel is situated just opposite to the 3 house of Smt. Neelam Basin. On enquiries made by PW-8 and PW-12 they were told by the Manager of the hotel Shri Satish Kumar (PW-11) that two boys had taken a girl inside room No.1. PW-8 and PW-12 forcibly opened the door and found the prosecutrix inside the room alongwith accused Narinder alias Sonu and accused Vikas alias Billu. The accused persons had taken off their clothes as also clothes of the prosecutrix. Her ornaments were also removed. Accused ran away from the place by brandishing a dagger. Prosecutrix informed them that from the Video Hall accused Narinder took her to Sainik Rest house by showing a dagger. There they stayed for some time. From there both Vikas and Narinder took her in a scooter to the hotel. They gave beatings to PW-11 and then took her inside the room. After consuming something liquid accused Narinder started opening his clothes. Even her clothes were opened. 3. During investigation dagger (Ext.P-1) was recovered from accused Billu in the presence of Shri Mahesh Bhaseen (PW-5). This was done on 24.5.1997 itself. Accused Narinder was apprehended on 25.5.1997 at 4.15 a.m. in the presence of Shri Satish Kumar (PW- 6). Accused persons were got medically examined. Prosecutrix was got medically examined by Dr. J.R.Azad (PW-4). Specimen signatures of accused Narinder were 4 taken by the police and record showing the entry made by him in the register maintained by Shri Hans Raj (PW-9), Chowkidar of Sainik Rest House, Kangra, was taken into possession. Documents were sent for comparison to a handwriting expert and report (Ext.PW-18/B) obtained by the police. With the completion of investigation, challan was presented in the Court for trial. 4. Accused were charged for having committed an offence punishable under Sections 366-A, 376 read with Section 511 and 34, IPC as also Section 324 read with Section 34, IPC. Accused were also charged for having committed an offence punishable under Section 506, IPC. Accused were also charged for having committed an offence punishable under Section 25(1)(A) of the Arms Act, 1959 read with Section 34, IPC, to which they did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined 18 witnesses and statements of accused under Section 313, Cr.P.C. were also recorded. Accused took a common defence that they were falsely implicated by the police in connivance with the complaint. Police were inimical towards them. Prior to the incident a case under Section 107/151, Cr.P.C. was registered when heated exchanges had taken place between them and the police. Police wanted to settle scores, therefore, falsely implicated 5 them. They were taken into custody in the evening of 23.5.1997 and the case was falsely planted on 24.5.1997. 6. The trial Court acquitted the accused. Hence the present appeal. 7. At the outset we may point out that as on the date of the alleged offence, the age of prosecutrix as opined by Dr. J.R. Azad, Medical Officer, Zonal Hospital, Dharamshal (PW-4) was between 17 ½ years to 19 years. In cross-examination, he admits that there can be a variation of 2 years. With this evidence on record, it would not be correct to contend, with certainty, as is so urged by the prosecution, that on the date of alleged offence age of the prosecutrix was 14 years. 8. According to the Investigating Officer (PW-16), accused Vikas was arrested on 24.5.1997 and accused Narinder on 25.5.1997. He admits that no identification parade was got done at all. Now, according to PW-8 names of accused had not been disclosed to him either by the prosecutrix or by the Manager of the hotel. He further states that he had not given any description of the accused in the FIR. He further states that PW-11 had only mentioned about “one boy” and a girl had gone to Room No.1. Now if this were so then how is it that names of both the accused persons find mentioned in the FIR. 6 9. Statement of PW-8 stands contradicted by the contents of the FIR on the question of presence of both the accused persons in the hotel. 10. In this background, statement of PW-12 becomes relevant. According to him, he accompanied PW- 8 to the house of Smt. Neelam Bhasin where they heard cries coming from the side of hotel Shail. He went to park the vehicle and on return found the girl outside the hotel where people had also gathered. This witness was declared hostile. He was extensively cross-examined by the Public Prosecutor, but nothing material could come out in his statement. He categorically asserts that he had signed the statement before the police under pressure. Now even this witness did not know Narinder from before. He denies having seen the prosecutrix visiting his Video Hall to watch a movie. His testimony proves that the prosecutrix was found outside the hotel where large number of people had gathered. 11. Further PW-11 has not supported the prosecution case at all. He was declared hostile and extensively cross-examined. There is nothing in his statement which would even remotely link the accused with the charged offence. He denies being beaten up by the accused. He has explained the injuries suffered by him. They were suffered one day prior to the incident. He 7 denies having known accused Vikas but admits that he knew accused Narinder. 12. To prove that from the Video Hall upto the Sainik Rest House accused took the prosecutrix in an auto rickshaw shri Surjit (PW-10) was examined. But he was declared hostile and nothing material come out in his statement. 13. In order to prove the fact that the accused had taken the girl to the Sainik Rest House and stayed there for some time, prosecution has produced Register (Ext.PW-7/A), wherein entry of arrival and departure is allegedly made by accused Narinder. This register is proved by Chowkidar Hans Raj (PW-9). Now according to him, only Sonu (Narinder) had come to the Rest House with one girl. He admits that no identification parade was got done by the police. He further admits that Sonu was not talking with the girl at the relevant time. He did not know Sonu from before and after the date of the incident saw him for the first time in the Court. This witness specifically does not identify the prosecutrix to be the girl who had accompanied Sonu to the Rest House. He does not state that the girl appeared to be under some fear, stress or threat. In any count his testimony does not inspire confidence. According to him both Sonu and the girl left the Rest House after 15 minutes. He was told that 8 they would come back later but they did not come. If this were true then obviously entry pertaining to the date of departure i.e. 25.5.1997 made in the Register is incorrect. It is not the case of this witness that Sonu had filled up wrong dates or had filled the date for departure while leaving on 24.5.1997 itself. Thus there is major contradiction in the oral and documentary evidence. 14. Dagger (Ext.P-1) is alleged to have been recovered by the police on the personal search of accused Vikas @ Billu in the presence of Shri Mahesh Bhaseen (PW-5), who is a close relative of the complainant. He admits that his shop is adjoining the shop of Jagdish, with whom the prosecutrix had come to stay from Delhi. He also admits that the Video Hall is just opposite to the shop of Jagdish. Importantly, he admits that Ext.P-1 was recovered from the possession of Vikas @ Billu by the police in the Police Station. This version stands contradicted by PW-16, according to whom, accused was arrested in the Chowk at Kangra and on his personal search knife/dagger (Ext.P-1) was recovered. 15. Satish Kumar (PW-6) has deposed that accused Narinder was apprehended on 25.5.1995 and on his personal search one sword (Ext.P-5) was found. However, it is not the case of the prosecution that sword was ever used by the accused persons in committing the 9 alleged offence. Further this version is contracted with the version of the prosecution and her mother with which we shall deal later. 16. This leaves us with the testimony of prosecutrix and her close relatives i.e. Shri Satish (PW-8), Smt. Usha Sawhni (PW-13). 17. We find that there are material contradictions in their statements apart from the fact that they do not inspire confidence. 18. Version of the prosecutrix (PW-15) as narrated by Smt. Kamal Preet Gulati, (PW-14) an expert in sign language and Interpreter reads as under:- “(Shalu is deaf and dumb and is unable to give the name of her father. But she has given her age to be 14 years, as per sign language. She is being examined without oath) The accused persons had taken off my clothes when I had come to my grand parents house. Before that she was taken on a scooter first by pointed towards Narinder and then by pointed towards Vikas. I was taken before that from Cinema by first pointed towards Narinder and then towards Vikas. The knife was shown by both of them. They also took out my rings. They bolted the door from above. Then Narinder smoked a cigarette. They pulled my chain which I was wearing. Then Narinder took water. Then Narinder took off his trouser. 10 Then he took off my clothes. Then I was slapped by Narinder. Again said both of them slapped me. Then Narinder opened the door himself. I also gave him a leg blow. My maternal uncle gave him beatings later then said he gave beatings to both. I was taken through the valley, when I was taken from the picture hall. After walking for some distance, then I was taken on a scooter. Then I picked up the telephone, I was slapped by both of the accused persons. The door was opened by both of them. When the door was opened, Pappa was outside, I cried when I was slapped. Xxx xx xxxxxxx By Sh.S.K Soni for both accused. I cannot say how may people were sitting in video hall. Both accused were sitting in the video hall. I was taken by both of them. I went myself to video hall. I was not taken in front of the shop of my Nana. I was dragged. I was taken towards downside. It took half an hour for taking me to the hotel. The accused were shown to me by the police thereafter at 4 o’clock. It is incorrect that accused were not those persons. I have seen them twice, before today. I do not cry when I was taken out from video hall. To a question put whether she has been tutored, to the interpretter (sic). The witness is only pointing towards the accused persons and it is interpreted by the interprettor (sic) to mean that accused were the persons who took her. I have seen the accused today 11 outside the court. I used to go alone to my Bua’s house. I can sign. NOTE The witness has to be put repeated questions to make her understand the question and often repeated her answers as were apparent from sign language. She kept on pointing towards accused persons. Also pointed that the door was bolted. Her clothes were taken off. She was slapped. Water or liquor was consumed by the accused and both of them took her from video hall. The rest of her deposition is based on the interpretation given by the interpretor who was under oath. While asking about the name of her father, the witness has pointed out towards the accused person. “ 19. From the same, it is quite apparent that prosecutrix is quite incoherent in making her statement. She also appears to be not well oriented and perhaps tutored. The observationof the trial Court in the form of a note is very significant. 20. It is a settled position of law that conviction of an accused can be based on the sole testimony of a child witness if it is found that he was competent to testify and after careful scrutiny of evidence the Court is convinced about the quality and reliability of the deposition. The need for corroboration of testimony of the child witness is more a important rule of prudence and practical wisdom 12 than law. [ Ratansingh Dalsukhbhai Nayak vs. State of Gujarat, (2004) 1 SCC 64 and Acharaparambath Pradeepan and another vs. State of Kerala, (2006) 13 S.C.C. 643 ] 21. According to PW-8 on 24.5.1995 at about 2.15 p.m. prosecutrix came to his shop and by pointing towards the Video Parlour desired to go there. He saw her going into the Video Parlour. After one hour PW-13 came to look for her. He looked for her in the Video Parlour. He could not find her. Therefore, he inquired from Shri Kulwinder (PW-12). Both of them searched for the prosecutrix in the video hall but could not find her. Then they went to the house of their relative Smt. Neelam. Prosecutrix was also not there. While they were standing outside her house, cries of a girl which could be identified with the prosecutrix were heard coming from Hotel Shail. Then he and PW-12 went into the hotel and made inquiries from the manager (Satish), who informed them that one boy and one girl had gone to room No.1. He forcibly opened the door and saw prosecutrix sitting on the chair and the boy standing. After showing knife the boy ran away. Prosecutrix embraced him. It was only later on that he learnt the identity of the boy to be accused Vikas (identified in the Court as Billu). Importantly, this witness does not narrate the events as 13 disclosed by the prosecutrix or recorded in the FIR. There is contradiction. He found only one boy in the room. As per the prosecution both the accused were there. Further he does not mention that the accused had taken off his clothes. He also does not mention that he saw the Prosecutrix without her clothes. He was the first person to have met the prosecutrix. In all likelihood prosecutrix could have informed him of the alleged acts of outraging her modesty or forcibly assaulting her. Importantly, he admits that report to the police was lodged by Jagdish, who is the grand-father of the prosecutrix and father of PW-13. Now, neither Shri Jagdish nor Smt. Neelam have been examined in the Court. How did Jagdish know about the facts recorded in the FIR has not been disclosed. He, however, clarifies that Ext. PW-8/A bears his signatures and he was with Jagdish at the time when FIR was recorded. If this were true then he has definitely given a different version in the Court. 22. As per the version of PW-13 it was at about 1 pm. that the prosecutrix had gone to watch a movie in the Video Hall. After about 45 minutes – one hour she went to the shop of PW-8 to inquire about the prosecutrix and since she was not there, PW-8 and PW-12 went to search for her. Within 45 minutes – one hour prosecutrix was traced from “Shail Restaurant” This is yet another version 14 introduced by her. Whether it was Shail Restaurant or Shail hotel is also not clear. Whether there were rooms used for lodging or not is also not clear. Record of the hotel is not on record. Further, it is her version that she was called to the Hospital where prosecutrix was being medically examined. She has further deposed that: “Shalu has hearing and speech problem. But I understand her sign language as I have brought her up. Shalu cried a lot when she met me. What I could understand from her signs was that she was taken from video hall by a person after showing her knife, then she was taken to a room and slapped. She cried and then she was taken on a scooter. Then she told that another person also came there. She was pushed and was asked to take off her pant. Further that she was wearing stone ring, which those persons took away from her and took that in their pocket. Then she told that she was taken to another room in the scooter. Shalu has a different sort of voice when she cries loudly. They took her inside the room, bolted it from inside and tried to take off their own clothes and then she started crying, which was heard and she could be traced. Her cries were heard by my brother and Kulwinder.” 23. Thus all the three witnesses have given a different version about the alleged incident. 24. It is apparent from her statement that there was only one person who took away the prosecutrix from 15 Video Hall by showing a knife. But FIR refers to two persons. Undisputedly, Video Hall is located in the Centre of the Bazaar where there are large number of shops. Police Station is also close by. Undisputedly the alleged offence took place in broad day light. Surprisingly, prosecutrix did not attempt to resist the actions. She could have conveniently attracted the attention of passers-bye. Even no one saw the accused with a dagger. PW-9 also does not mention about another male person accompanying accused Sonu (Narinder). In these circumstances, version of the prosecutrix stands falsified. 25. Prosecutrix is alleged to have been dragged through the market for about half an hour which version also does not appear to be correct. She admits that she did not cry when she was taken out of the Video Hall. It was a crowed place. It is difficult to believe such a version. She further admits that the accused were shown to her by the police at about 4 o’clock. This version does not appear to be true as FIR was registered only at about 4.45 p.m. According to PW-13 police got both the accused identified from the prosecutrix at about 2.30 -3 p.m. on 24.5.1997 itself. Then obviously prosecution story of apprehending the accused on 25.5.1997 is false. As per the version of PW-16 no identification parade was carried out. 16 26. For all the aforesaid reasons, we came to the conclusion that prosecution case and the testimonies of the witnesses are full of contradictions rendering the prosecution version to be extremely doubtful if not false. 27. 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 person 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. 21st October, 2010 (Sanjay Karol), (C) Judge.