IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri.Appeal No. 503 of 2000 Date of Decision: 24th November, 2010 State of Himachal Pradesh Appellant Versus Ashok Kumar Respondent Coram The Hon’ble Mr. Justice R.B.Misra,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.R.K.Sharma, Addl. Sr. A.G. For the respondent: Mr.I.D.Bali, Sr. Advocate, with Mr. Digvijay Singh, Advocate. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 9.6.1997, accused was put to trial. In terms of judgment dated 14.2.2000, passed by learned Additional Sessions Judge, Shimla, in Sessions Trial No. 9 of 1999 titled as State of H.P. Vs. Ashok Kumar, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Atma Ram (PW-3), who was married to Smt. Vidya Devi (PW-4) was living with his family in Village Garange, Tehsil Nichhar, District Kinnaur. Whether the reporters of Local Papers are allowed to see the Judgment? 2 Prosecutrix (PW-2) was born to them on 2.9.1981. On 17.3.1989 she was admitted in the Govt. Primary School, Puje/Grange. However, she could not pass examination of 4th standard and therefore, left the school on 14.3.1996. On 9.6.1997 Atma Ram had left his home to go to another village with the local Devta. On the same day at about 1 p.m. PW-2 left her house to answer the call of nature at the nearby Nullah. On her way back, she met the accused who asked her to accompany him to the uninhabited house of Sh.Akalbeer (not examined). Prosecutrix refused, but, accused forcibly picked her up and took her inside the house. There he opened the string of her salwar and forcibly committed sexual intercourse with her. She could not resisted his advances as he had gagged her mouth with one hand. After committing the crime he threatened the prosecutrix not to disclose the incident to anyone. Thereafter, both of them came out of the house and then the accused managed to escape from there. In the morning of 10.6.1997 prosecutrix narrated the incident to her mother. Same day in the evening, when her father returned home, her mother narrated the incident to him. On 11.6.1997 Atma Ram approached the parents of the accused for a compromise. On the asking of the 3 father of the accused he did not report the matter to the police. Since the accused refused to accept the prosecutrix as his wife, Atma Ram reported the matter to the police on 14.6.1997 and statement of PW-2 was recorded on the basis of which FIR No.46 (Ext.PB) dated 14.6.1997 was registered at Police Station Bhabanagar under Sections 342 and 376, IPC. Prosecutrix was got medically examined through Dr.Neelam Gupta (PW-6) who issued MLR (Ext.PE). Vaginal swab handed over by the Doctor to the police was sealed and sent for chemical analysis. Accused was also got medically examined through Dr. Vivek Karol (PW- 1), who issued MLC (Ext.PA). School leaving certificate (Ext.PW-7/A) and birth certificate (Ext.PW-7/B) was issued by Sh. Madan Lal, (PW-7) Headmaster, Govt. Primary School, Puje/Garange. Report of Chemical Analyst (Ext.PF) was collected by the police. With the completion of the investigation challan was presented in the Court for trial. 3. Accused was charged for having committed offences punishable under Sections 342, 376 and 511, IPC, to which he did not plead guilty and claimed trial. In order to prove its case prosecution examined witnesses and the statement of the accused under Section 313, 4 Cr.P.C. was also recorded in which he took the defence of false implication. 4. Court blow acquitted the accused of the charged offence. Hence the present appeal. 5. Prosecution has to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence. Prosecution has to show that the accused had wrongly restrained the prosecutrix in such a manner that she was prevented from proceeding with certain circumscribing limit which in this case was in the house of Akalbeer. Prosecution also has to prove that the accused forcibly committed intercourse with the prosecutrix. 6. In the instant case, we find that there is inordinate delay in reporting the matter to the police. To us it appears not to have been explained sufficiently. Offence is alleged to have taken place sometime in the afternoon of 9.6.1997. Prosecutrix allegedly narrated the incident to her mother in the morning of 10.6.1997. PW-3 admits that his wife Vidya Devi (PW-4) narrated the incident to him at about 8 p.m. on 10.6.1997 itself. According to the father he went to the police and lodged the report on 11.6.1997 but the police asked him to bring the prosecutrix to the police station. In 5 the evening the parents of the accused accompanied by the President of Mahila Mandal Smt. Padamzin came and proposed that the matter be settled. This witness proposed that his daughter be married to the accused which was not acceptable to the parents of the accused for the reason that he was already married. Consequently on 12th he went to the police and lodged the repeat there. Police called him on 14.6.1997 when prosecutrix was medically examined. Now this version of his stands rebutted and contradicted by the material on record. Firstly FIR (Ext.PB) does not record this fact. Secondly investigating officer has categorically denied that any complaint was lodged by the prosecutrix or her parents on 12.6.1997. According to him complaint was lodged for the first time on 14.6.1997. Further President of the Mahila Mandal has not been examined in the Court. It is not the case of the complainant that the police has unfairly investigated the matter. Hence this version does not inspire confidence. Importantly, prosecutrix herself states that she was examined by the police only once and that is on 14.6.1997. She thus contradicts the version narrated by her father. Some talks of compromise may have taken place between the parties, but, 6 however, except for the bald statement of the father there is nothing on record to establish this fact. We find that the delay in lodging the report with the police has rendered the prosecution case to be doubtful. 7. The next point is the age of the prosecutrix. According to the prosecution as per certificates (Ext.PW-7/A and Ext.PW-7/B), prosecutrix was born on 2.9.1981. Shri Madan Lal (PW-7) has proved the certificates. Having considered his testimony, we are of the view that not much reliance cannot be placed on the certificates for the reason that entries of date of birth cannot be said to be proved in accordance with law. The date of birth is not entered in the record of the school on the basis of record maintained under the Births, Deaths and Marriages Registration Act. PW-7 did not produce the certificate of birth issued by the Gram Panchayat which allegedly was given at the time of admission of the child in the school. Further he could not state as to who had got the child admitted in the school and on whose instance date of birth was recorded. He does not even know the source of the same. Additionally he admits that the admission and withdrawal register on the basis of which the certificates in question were 7 issued is not paginated. This renders the authenticity of the record to be doubtful. Consequently no much reliance can be placed on the same. 8. Dr. Neelam Gupta (PW-6) carried out the x-ray of the prosecutrix and referred her to another hospital for taking expert opinion on the determination of the age of the prosecutrix. Unfortunately in this case no such opinion has been placed on record. Whether material in this regard has been concealed or prosecutrix was not examined at all is not evident from the record. Most importantly prosecutrix and her parents admit that as on the date of the alleged offence prosecutrix was more than 16 years of age. This totally knocks down the foundation of the prosecution case. Hence prosecution has not been able to prove either the exact date of birth or the fact that as on the date of the alleged offence prosecutrix was less than 16/18 years of age. 9. We find that Doctor (PW-6) has categorically opined that no injury marks were found on the body of the prosecutrix nor were any blood and semen stains were found on her private parts. There was no tear or congestion of hymen. 8 She opined that there was no evidence suggestive of sexual intercourse. 10. Prosecutrix in her statement states as under:- “Stated that after failing in 4th standard examination, I had left school. My parents have only 2 children. I am the elder. My younger sister is Kumari Urmila. It was about 3 years back in the summer season that on one day at about 1 p.m. I had gone to the side of the house of Akalbeer to answer the call of nature. The house of Akalbeer is uninhabited and is located outside the village. There are no other houses around that house. When I had answered the call of nature and was present at the Nalla near the house of Akalbeer, accused Ashok Kumar present in the Court today met me. He asked me to accompany him to the house of Akalbeer located above the Nalla. However, I refused to go with him. However, he forcibly lifted me and took me to the said house. There he opened the string of my Salwar and committed forcible sexual intercourse with me. I could not raise alarm as he had gagged my mouth with one of his hands. He also told me not to reveal anything about the occurrence to anyone. Then the accused left me in the said house and himself fled away after bolting the door from outside. I came out through the window and reached home. The 9 accused belongs to our village. I did not narrate the incident to anyone out of fear. However, I was experiencing pain in the entire body as a result of the forcible act of sex committed upon me by the accused. I narrated the incident to my mother on the 4th day. On or about the time of the occurrence, my father had gone to Jeori with the Devta. He returned home after 3 days from the occurrence. It was thereafter that I alongwith my parents visited police station Bhabanagar and lodged report. F.I.R. Ext.PB bears my signatures. I was sent for medical examination. M.L.C. mark A bears my signatures. I was also subjected to x- ray examination. At the time of the occurrence I was wearing Salwar and Kameez. I can identify the clothes.” 11. Now her version totally knocks down the case of the prosecution. In view of the clear statement of the prosecutrix we find that the opinion given by the Chemical Examiner to be false. When no bleeding took place then how is it that blood was found on the clothes of the prosecutrix. It is a settled position of law that in the absence of any corroborative medical evidence if the version of the prosecutrix inspires confidence accused can still be held guilty for the charged offence. 10 12. As per the prosecution accused forcibly lifted her and took her to the house of Akalbeer where he opened the string of her Salwar and committed rape. She could not raise alarm as the accused had gagged her mouth with his one hand. Importantly, she states that her clothes were intact. This version stands contradicted by the FIR wherein it is so recorded that the accused tore her clothes. This may not be fatal but definitely creates a doubt in one’s mind about the veracity of her statement. She further admits that houses of Mangat Ram, Gian Chand, Krishan Kumar and Vinod Kumar are near to the house of Akalbeer and are in fact visible from there. The crime is alleged to have taken place in broad day light when normally ladies are at home. Prosecutrix could have cried for help which would have attracted the attention of the neighbours. She was familiar with the residents of the village. Her version does not inspire confidence. Had she desired she was in a position to resist the advances of the accused. 13. According to the prosecutrix, accused committed the crime over a considerable period of time. She could have easily resisted his advances by giving blows. Further medical record does not suggest that accused had either gagged 11 her mouth or used any force on her. No injury marks were found on her body or for that matter the accused. 14. Further in Court she states that after committing the crime accused bolted her from outside and she escaped from the window of the room. Now this version of hers stands contradicted by her own statement (Ext.PB) wherein it is recorded that both of them came out of the room after the accused had bolted the room from outside she managed to escape from there. Even the Investigating Officer has deposed that no window was found where the alleged offence took place. She kept quite for 4 days. It is not her version that the accused had threatened her. What prompted her to disclose the incident after 4 days is not clear. 15. For the aforesaid reasons, we find that the version of the prosecutrix does not inspire confidence and whole edifice of the prosecution case stands demolished by the version of the prosecutrix. All the prosecution witnesses stands materially contradicted by the material on record. 16. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in 12 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. (R.B. Misra), Judge. November 24, 2010 (Sanjay Karol), (C) Judge.