IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 567 of 2003 Date of decision: 22.09.2010 Kundan Lal alias Thakur Dass … Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Chandranarayana Singh, Advocate. For the respondent: Mr. J.S. Guleria, Assistant Advocate General. V.K. Ahuja , J. (Oral): This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, dated 6.12.2003, vide which he held the appellant guilty under Sections 376 read with Section 511 I.P.C. and 506 I.P.C., and convicted and sentenced him as under:- 1. Under Section 376 IPC read with Section 511 IPC:- Four years S.I. and fine of Rupees Ten Thousands. In default of payment of fine, convict shall further undergo S.I. of six months. 2. Under Section 506 IPC:- Two years S.I. and fine of Rupees Two Thousands. In default of payment of fine, convict shall further undergo S.I. of two months. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. Briefly stated, the facts of the case are on 25.6.2002, at about 2.30 P.M., a report was lodged with the police by one Indu Bala, accompanied by her father, in which she alleged that on 17.6.2002 she had gone to fetch grass from her orchard at place Sharvi. At about 5.30 P.M., the appellant (accused) followed her, caught hold of her, laid her on the ground, opened the string of her Salwar and committed rape upon her. She resisted the act of the rape, but the accused did not leave her. She further alleged that the accused had promised to marry her. She narrated incident to her mother on 22.6.2002. The relatives were called and the accused took her to his house on 22.6.2002 and she stayed there for the night. However, she came back to the house as the accused did not provide her food and clothes and accused also left the house. On the next day, her father came and she narrated the incident to him and the report was lodged on 25.6.2002. After medical examination of the prosecutrix and accused and on completion of the investigation, the challan was filed before the Court of learned Sub Divisional Judicial Magistrate, Anni, who committed case to the Court of learned Sessions Judge, Kinnaur, who framed charge under Sections 376 and 506 I.P.C. as against the appellant. On conclusion of the trial, the appellant was held guilty under Sections 376/511 I.P.C. and 506 I.P.C. and convicted and sentenced as detailed above. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. The submissions made by the learned counsel for the appellant were that the prosecutrix statement was not such which inspires confidence or which could be believed without there being 3 any medical evidence or other evidence and the possibility of false implication to put pressure upon the appellant to marry the prosecutrix cannot be ruled out and since the prosecution had failed to prove its case beyond any reasonable doubt, the appellant deserves to be acquitted. 5. On appraisal of the record of the case, it is clear that there is statement of prosecutrix as PW-1, who is the sole eye witness to the occurrence and her relatives including her parents have only stated in regard to this fact as told to them by the prosecutrix. PW-1 Indu Bala, prosecutrix, has stated that the accused caught hold of her, laid on the ground and the appellant laid his body upon her body. He opened the string of her Salwar and committed rape upon her. She stated that she resisted the act of the accused, but the accused did not leave her. She further stated that the accused told that he would marry her. These are the only facts narrated by her in regard to the occurrence. She did not state as alleged in the report lodged with the police that she was subjected to sexual intercourse on the promise of marriage and rather she has stated that the act of rape was committed and thereafter, the accused stated that he would marry her. Therefore, it cannot be said that the prosecutrix succumbed to sexual intercourse on the promise of marriage. She did not state that she give any blows to the accused with nail or other blows or tried to resist the act of the accused. She simply used the word ‘resisted’ and in what manner or form was not narrated by her and she stated that she raised loud voice, but none was available, which proves that actually there was no resistance at all. There were no marks of violence on 4 her body on examination by the Medical Officer PW-7 Dr. Neeru Pandit Kapoor, since she did not find any marks of violence on her body and nothing is there in the statement of the prosecutrix herself that she committed any such act to resist the sexual assault of the appellant. No marks of any violence whatsoever or resistance were found on her body, which could show that she protested the act of the appellant to commit rape upon her. 6. Apart from the above, she did not disclose the incident to any person till 22.6.2002 and after 5 days only for the first time, she disclosed the incident to her mother PW-4 Smt. Dhani Devi, who stated that she was told by the prosecutrix about the occurrence. In her cross-examination, she has stated that she had gone to cut the grass alongwith the prosecutrix on 17.6.2002, which is the date of occurrence. PW-4 further stated that she narrated the incident to her husband on 23.6.2002 and on 22.6.2002 the prosecutrix had been sent to the house of the accused, may be for settlement and she stayed there and came back on the next date. PW-3 Ishwar Dass, father of the prosecutrix, has stated that he learnt about the occurrence from his wife. He called father of the accused, mother of the accused as well as the accused who took the prosecutrix to his residence, but she came back on the next day at 5.00 P.M. on the pretext that no food was provided to her. He did not state that she came back since the accused had refused to marry her and this is clear that she came back on 23.6.2002, still no report was lodged and it is only after two days that a report was lodged on 25.6.2002. 7. From the perusal of the above evidence, it is clear that the occurrence took place on 17.6.2002. The prosecutrix does not inform to 5 any person in the house and she informs her mother on 22.6.2002, who sends her to the house of the accused on the same day and she stays there and comes back on 23.6.2002. On 23.6.2002 also, no report is lodged and her husband comes back on 23.6.2002 and after two days, the report is lodged on 25.6.2002. Therefore, there is no satisfactory explanation for the delay of about 8 days in lodging the report. The delay in question cannot be said to be fatal in such cases when the honour of the family is involved and they took time for lodging the report, but no plausible explanation is there on record to show when the girl came back on 23.6.2002, since the accused had not agreed to marry his daughter, still the report was not lodged. In such circumstances, the delay in question cannot be said to be fatal, but the witnesses of the prosecution have to be appreciated with more care and caution to rule out the possibility of false implication. 8. It has also come in the statement of the witness that the accused was already engaged or was going to be engaged and though some evidence has been led in this regard that he was already engaged or was going to be engaged with another girl. In case he was already engaged on 17.6.2002 or earlier, thereafter there was no question of his agreeing to marry the prosecutrix, but attempts were made on behalf of the family of the prosecutrix, who sent their daughter to the house of the accused and she stayed in the house of the accused for one night as it has come up in the evidence. Insofar as the observation made by the learned trial Court is concerned that the accused made judicial confession, I do not agree to the said conclusion since some of the witnesses, namely, PW-3 Ishwar Dass and PW-4 Smt. Dhani Devi, parents have stated that firstly the accused denied and then 6 admitted the offence. They did not state the exact words used by the accused at that time and the learned trial Court held that it can be treated as judicial confession made by the accused. 9. Coming to the medical evidence, Medical Officer PW-7 Dr. Neeru Pandit Kapoor examined the prosecutrix on 27.6.2002 and observed as under:- “ …… Alleged history of being pushed forcibly to the ground in the fields while cutting grass on 17.6.2003 at around 5.30 P.M. General Physical Examination – Moderately built and nourished, Height 4’9” weight 45.9 Kg. No. of teeth 14 in each jaw. M.M.P. 25-5-2002. Marks of violence – nil. Secondary sexual characters – Breasts well developed. Areola light brown in colour. Axillary hair, scanty, black. Pubic hair - Very scanty (already removed). Few hairs taken and preserved and sent for chemical examination. Clothes - Salwar sealed and handed over to the police. P/A – NAD. P/V Examination – No injury to external genitalia seen 1. Labia majora covering labia minora. 2. Vagina admits tip of little finger with difficulty. 3. Hymen was intact. Vaginal smear slides taken from posterior fornix and sealed and sent for chemical examination. I advised the following x-ray for age estimation: 1. X-ray right hip, knee, ankle, shoulder, elbow and wrist joint. 7 X. rays were referred to Radiologist at Zonal Hospital, Mandi for age estimation. In my opinion, there was no physical interference to external genitalia. However, the final opinion was to be given after chemical examiner’s report. According to Chemical examiner’s report brought on 14.10.2002 by SI/SHO Braham Dass, no blood or semen was found on the slides or Salwar. Final opinion remained the same. She was not exposed to coitus. ……….. “ 10. It is clear from a perusal of the statement of the medical Officer that there was nothing to show that the prosecutrix was exposed to coitus. There were no marks of injury on the vagina or on other parts of the body of the prosecutrix. The Salwar of the prosecutrix which was taken into possession by the police was not having any blood marks or semen as per the report of the expert Ext. PW11/B including the clothes of the accused. The prosecutrix as PW-1 has stated that the Salwar which she was wearing at the time of the incident was lying in her house, which she gave to the police, which was returned back, but the Salwar which was produced during the trial of the case Ext.P-1 was not worn by her at the relevant time. It cannot be said that she stated the facts incorrectly or did not produce the Salwar to the police intentionally and the police had given no reason in not taking into possession the Salwar, which was worn at the time of occurrence and this may have been stated by her since no marks are found on the Salwar, which was sent to the Chemical Examiner and that would be one reason to state that the Salwar which was worn at the time of occurrence was returned by the police and was lying in her house. 8 11. From the above discussion , it is clear that rape in question was committed in the evening at about 5.30 P.M. and there were some houses or orchard at some distance, but the prosecutrix did not make any attempt by raising an alarm and none was called for help to resist the act of rape allegedly committed by the accused. Therefore, no witness has been examined who may have come to the spot and stated about the occurrence. The fact that there were no marks of violence found on her body does not corroborate her testimony that she was raped against her consent. The Medical Officer has ruled out the possibility of the rape and the learned trial Court convicted the appellant for attempt to rape without concluding that he believes the statement of the Medical Officer and no rape was committed and he accordingly convicted the appellant only for attempt to rape. In case any attempt was made to open the string of the Salwar by the appellant and the fact that it was not broken, there is nothing to show that she resisted the act of the appellant in opening her Salwar or committing rape with her. It is true that the prosecutrix’ sole statement can be believed without there being any corroborative evidence, but the fact remains that in case the prosecutrix states that she was raped and her statement is such which cannot be relied upon, there has to be some corroborative evidence to show that she resisted the act and committed some violence upon the appellant or there were some injuries on her person or on the private parts when she resisted the act of the appellant in committing this act. Therefore, the statement of the prosecutrix is not such which can be relied upon to hold the appellant guilty for the offence for attempt to rape and as 9 such, I accordingly hold that the findings of the learned trial Court to the contrary are liable to be set aside. 12. In view of the above discussion, the appeal filed by the appellant is accepted and conviction and sentence imposed by the learned trial Court is set aside. Fine if recovered, shall be refunded to the appellant after a period of three months from today. The bail bonds furnished by the appellant shall stand discharged. ( V.K. Ahuja ), September 22, 2010 Judge (BSS) 10