HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 81 of 1993 Decided on: 30.5.2008. State of Himachal Pradesh ………Appellant. Versus Prem Lal and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. The Hon’ble Mr.Justice Surinder Singh, Judge. Whether approved for reporting? No. For appellant: Ms.Shubh Mahajan, Deputy Advocate General, and Mr.J.S. Guleria, Law Officer. For the respondents: Mr.Rakesh Jaswal, Advocate. Per V.K. Ahuja, J: This judgment shall dispose of an appeal filed by State of H.P. against the judgment of the court of learned Sessions Judge, Mandi, dated 3.8.1992, vide which the respondents were acquitted of the charge framed against them under Section 363, 366 and 376 IPC. Briefly stated the facts of the case are that on 27.5.1991, a complaint was made to the Superintendent of Police by Ghanshyam, father of the prosecutrix named ‘P’, alleging that his daughter had been raped on 14.5.1991 _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - by both the respondents. He alleged that he had gone to the police station but no report was registered and then he filed a complaint before the Superintendent of Police. Thereafter, on 28.5.1991, the case was registered against the respondents. On completion of the investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned trial Court who tried the respondents leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that the prosecutrix ‘P’ had been examined in the court as PW-1 in which she stated that around 10 or 11 in the night, she was cooking meals in her house and accused Prem Lal came there and told her that her parents were calling her to the fields. Her parents were away to the fields for thrashing of the wheat crop. She went alongwith Prem Lal and when she reached the road side, Prem Lal grabbed her and took her in a taxi which was standing there being driven by Nirmal Kumar, the other accused. She was forcibly put in the taxi, which was taken to a place known as Lassi-Ka-Padhar. The taxi was stopped in front of the shop of Mohan Lal, where both the accused took liquor for about 1-1/2 hour and she was locked from outside in the said taxi. She stated that the accused also made her to drink liquor and she was taken to a Khad where both the accused raped her. Thereafter, they brought her to the house of Nirmal Kumar accused, where they both raped her again. On the next morning around 5-6 am, one Raju and Paras Ram came there and Paras Ram, who is not related to them, took her from the house of Nirmal Kumar, where his wife Mohini was present. She did not narrate the incident to Mohini Devi, but told Raju and Paras Ram that she had been raped by - 3 - both the accused. Her father reached the house of Paras Ram in the company of police and she was taken to police station, was got medically examined vide MLC Ext.PA. She narrated the incident in detail both to her mother and father on reaching the house. The learned trial Court had found the statement of the prosecutrix unreliable for various reasons. One of the reasons given by the learned trial Court was that it has come up in the statement of the prosecutrix that when she was being taken to the Thrasher, the said Thrasher was at a distance of 10-15 yards from her house and was situated on the way to the road. Once the Thrasher fell on the way to the road and she was to go to the Thrasher as per the message given by the accused, what was the occasion for her to accompany the accused upto the road side. She also stated that when she was going on the way to the road, she saw her parents working at the Thrashing floor but did not state as to what was the reason for her going to the road inspite of the Thrashing floor where her parents were working and had called her there. In her statement, she had further come up with a plea that she was taken to the house of accused Nirmal Kumar after she was raped in the Khud by both the accused persons and she was confronted with her earlier statement where she has nowhere stated that she was taken to the house of Nirmal Kumar and had again been raped by both the accused persons. She did not state that she shouted to her parents while going towards the road as she nowhere stated that her mouth was shut at that time. It was only shut by the accused Prem Lal by placing his hand on her mouth when she was being forced to enter the taxi. This clearly shows that she had no occasion to go towards the road, had an opportunity to raise her voice and call her parents but she proceeded towards - 4 - the road which makes her story doubtful that she was forcibly taken in the taxi by the accused persons. She was also confronted with her statement Ext.DA wherein she had nowhere stated that the accused persons stopped on way, took liquor for 1-1/2 hours and also brought liquor for her which was given to her forcibly. This version was given by her for the first time in court when she appeared in the witness box. She was also confronted with her statement given to the police wherein she had nowhere stated that on the next morning, Raju and Paras Ram came to the house of Nirmal Kumar and took her to the house of Paras Ram. She denied that she had told the police in her earlier statement wherein it was recorded that she was left by the accused persons near the house of Paras Ram during night time and said Paras Ram was her Chacha, though in her statement in the court, she has stated that said Paras Ram was not related to her. In her further statement PW-1 ‘P’ Prosecutrix has stated that when she was forced to enter the taxi, there was one shop and 4-5 houses and several persons were passing from the road and one Sohan Singh had also seen her but she did not raise any voice at that time. PW-2 Ghanshyam, the father of the prosecutrix, had stated that when they came back from the fields, his wife’s mother told on inquiry that the prosecutrix had gone towards the thrashing floor because Prem Lal had come and told that she was called by them. He stated that the house of Prem Lal was close to their house and he went there and did not find the prosecutrix and thereafter, he alongwith his brother and brother’s son Raju went towards Ratti in search of his daughter. On reaching Ratti, Raju told him that he had seen the taxi of Prem Lal going, in which the prosecutrix was sitting and was crying and - 5 - raising her hand for help. He searched for the prosecutrix but could not find her and then lodged the report with the police, who did not register the report though he told them about the involvement of Prem Lal accused in the disappearance of his daughter. Then Prem Lal was called from his place of work who told that the prosecutrix was not with him but has been left in the house of co-accused Nirmal Kumar. The police went there and Paras Ram’s house was close to the house of Nirmal and said Paras Ram produced the girl from where the girl was recovered. He stated that he went to the police and made attempts to lodge the report, but it was not registered by the police and thereafter, he went to the Dy.S.P. and lodged the report Ext.PB with the police. The statement of PW-2 Ghanshyam was found to be unreliable by the learned trial Court, who observed that this witness was a liar and cannot be believed. The first report lodged with the police about the missing of the prosecutrix was proved in evidence as Ext.DF, which was recorded on the next morning at 10.40 a.m. i.e. on 14.5.1991. In the said report, PW-2 Ghanshyam had reported that he had asked his daughter to carry bundles of wheat to the thrasher of Ganga Ram but she refused to carry the same and he slapped his daughter but when he reached his house, his daughter was found missing and he lodged the missing report with the police. Thereafter at about 11.45 a.m. on the same day, the report was lodged with the police the copy of which is Ext.DG in which he alleged that he had reported to the police about the missing of his daughter who has been found in the house of Paras Ram, who is his brother in relation. Therefore, no further action be taken. Both these reports were proved in the statement of PW-12 Kamal Nain, ASI. - 6 - Once a report was lodged with the police by the father of the prosecutrix about the missing of his daughter, then about the recovery of his daughter from one of his relations house, we see no occasion for the prosecutrix’s father not to have mentioned this fact at that time in any of the reports that his daughter had been raped by the accused persons, who had forcibly taken her. His statement that the police refused to register his complaint and then he lodged a report with the police vide Ext.PB addressed to SP, which is dated 27.5.1991, shows that PW-2 Ghanshyam had come up with a new version which was never his case earlier and now after about 13 days of the occurrence he is coming up with a plea that his report was not registered by the police, which is wrong as per the copy of the rapat registered by the police on his report and he has tried to cover the delay also in lodging the report after 13 days and now has come up with a plea that she was raped by these respondents. Apart from this, in the defence DW-2 Netar Singh, Pradhan of the Panchayat, had proved the apology Ext.DX and stated that Ghanshyam had touched Prem Lal’s feet and apologized that the report lodged by him was false. A perusal of Ext.DX shows that PW-2 Ghanshyam had admitted that the report lodged by him was false and he had apologized in this regard. A perusal of the judgment of the learned trial Court shows that this witness had changed his stand at different times in regard to this document Ext.DX and his signatures on it. After referring to the statement of PW-2 in detail, the learned trial Court had observed that the story put up by this witness subsequently that the girl was recovered from the house of Paras Ram also falsifies his deposition. There are many other infirmities in the statement of the - 7 - prosecution witnesses, which leads to the inference that the prosecution story cannot be relied upon. Different versions have come on record in regard to the recovery of the girl. PW-1 ‘P’ Prosecutrix had stated that she was recovered from the house of Nirmal Kumar by Paras Ram and Raju, who came there and then her father reached the house of Paras Ram with police and then she was taken to the Police Station. There is nothing how Paras Ram and Raju came to know that the girl was missing and was present in the house of Nirmal Kumar. PW-2 Ghanshyam, the father of the prosecutrix, never stated that he enquired from Paras Ram about the disappearance of his daughter or that he had lodged a report with the police about her disappearance. The statement of the Investigating Officer PW-12 Kamal Nain also does not show that the police accompanied the father of the prosecutrix and the girl was recovered from the house of Paras Ram. PW-2 Ghanshyam has come up with a version that he went with the police to the house of Paras Ram, close to the house of Nirmal and from there the girl was recovered. But there is nothing in the statement of any police official that the police accompanied PW-2 Ghanshyam and got recovered the girl from the house of Paras Ram adjoining the house of Nirmal. Moreover, in case PW-2 Ghanshyam had learnt on the same day itself from one Raju that the prosecutrix had been seen going in taxi and was crying, it was quite natural that the matter should have been reported to the police and these facts should have been told to the police when the missing statement was lodged with the police in which there is no reference to this fact having been told by PW-2 Ghanshyam to the police. Moreover, the learned trial Court had rightly observed that in case Raju PW-4 had seen the girl being taken forcibly in the - 8 - taxi, it was quite natural for him to have told these facts to PW-2 Ghanshyam and they could have gone to the police to seek assistance for recovery of the girl or should have gone to the house of the accused persons. This was never done and the conduct of PW-4 Raju in this regard, who is closely related to the prosecutrix’s father, was rightly condemned by the learned trial Court. The learned trial Court had taken into consideration various infirmities in the statement of the prosecutrix as well as her father, who were both condemned as liars and unreliable and the statements of other prosecution witnesses were not such which could give credence to the prosecution story. There has been considerable delay of about 13 days in lodging the FIR and no plausible explanation is on record, rather the proof of the Rapat Rojnamcha entries, as mentioned above, clearly shows that different version was given by the prosecutrix’s father to the police about the missing of his daughter and her recovery and subsequently, the facts were distorted to make a case as against the respondents. The prosecutrix’s father had himself tendered an apology for lodging the report falsely. The accused persons had also examined DW-1 Mohini, wife of Paras Ram, who stated that the prosecutrix had come to her house after having been beaten. The accused had also examined one DW Mohan where the accused persons had allegedly taken liquor and he denied that the accused persons ever came to his shop or took liquor. Therefore, from the above discussion of the evidence and the findings recorded by the learned trial Court, it is clear that the findings recorded by the learned trial Court holding that the guilt of the respondents was not established cannot be said to be perverse calling for an interference by this court and as - 9 - such those findings are liable to be affirmed, which are affirmed accordingly. There is no merit in the appeal filed by the State and the same is dismissed accordingly. Bail bonds furnished by the respondents shall stand discharged. (V.K. Ahuja), Judge. May 30, 2008. (Surinder Singh), (TILAK) Judge.