IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.204 of 1996 Reserved on : February 25, 2010 Date of Decision : March 4th, 2010 State of H.P. …Appellant Versus: Sanju …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. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht. Dy. A.G. For the respondent : Mr. S. K. Acharya, Advocate. Sanjay Karol, J. The present appeal filed under Section 378 of the Code of Criminal Procedure is directed against the judgment of acquittal dated 20.3.1995 passed by the learned Addl. Sessions Judge (2), Kangra at Dharamshala, H.P. in Sessions Case No. 1- G/VII/95 under Sections 376 and 382 IPC. It is the case of the prosecution that on 7.11.1993 prosecutrix (PW-6) had visited Village Garli for attending a religious function of “Baba Talau”. She is a married lady and a permanent resident of village Jawahar. She attended the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Bhandara and purchased certain articles in the bazaar at Garli. On her way back home, accused Sanju snatched her bag and ran towards the khad of village Garli. In order to get her bag she also ran after him. Thereafter he made her lie on the ground and after untying her salwar forcibly committed sexual intercourse without her consent. She raised hue and cry but the accused managed to escape from the spot leaving behind her bag. However, while fleeing the accused also took away her money and one silver chain. Certain ladies who happened to come at the spot took the prosecutrix to Garli where people had gathered and she was taken to the hospital at Garli for medical examination. Since the Medical Officer was not present she could not be examined there. Thereafter Shri Kuldeep Chand (PW-6) Up-pradhan of Garli telephonically informed the office of the SDM, Dehra about the incident. In turn the police was telephonically informed about the alleged crime which was recorded in the daily diary at Sl. No. 14 dated 7.11.1993 (Ext.P- 11). SHO Naranjan Singh (PW-13) visited Garli and recorded the statement of the prosecutrix under Section 154 Cr.PC (Ext.P-6). The same was sent to Police Station, Jawalamukhi for registration of the case and accordingly F.I.R. (Ext.P-12) was registered on 7.11.1993 at about 8.45 P.M. The prosecutrix was got medically examined by Dr. Anita Mahajan (PW-1) and medical certificate (Ext.P-1) was issued by her. During the course of the investigation, clothes of the prosecutrix were sent 3 for chemical examination and on 8.11.1993, the place of occurrence of the alleged crime was inspected by the Investigating Officer who prepared the spot map (Ext.P-15) and took into possession the broken bangles (Ext.P-5), allegedly belonging to the prosecutrix vide seizure memo Ext.P-7. Other necessary formalities were completed by the police and the challan was presented in Court for trial. The accused was charged for an offence punishable under Section 376 IPC for having committed rape on the prosecutrix and also under Section 382 IPC for having committed theft of Rs.265/- and one silver chain belonging to the prosecutrix, after having made preparation for causing hurt and restraint for retaining her property and causing hurt. In all, the prosecution examined 13 witnesses and the statement of the accused under Section 313 Cr.PC was recorded. The accused did not plead guilty. He also did not lead any evidence in support of his defence. The Court below has acquitted the accused on all counts. Hence, the present appeal. From the testimony of Dr. Anita Mahajan (PW-1) and the medical report Ext.P-1, it is evident that the prosecutrix was subjected to sexual intercourse. It is the case of the prosecution that the prosecutrix is a married lady and has two children. It is not the case of the prosecution that her husband was not alive or that prior to the occurrence of the alleged incident, she did 4 not have sexual intercourse with him. Therefore it is to be examined as to whether it was the accused who had committed the sexual intercourse without the consent of the prosecutrix. It is not the case of the prosecution that the alleged commission of offence had been witnessed by any person. It has however been urged that Smt. Ram Piari (PW-5), Smt. Lajo Devi (PW-7) and Smt. Biasa Devi had met the prosecutrix at the place of crime to whom the incident was narrated. Importantly, independent witnesses Smt. Ram Piari (PW-5), Shri Kuldeep Chand (PW-6) and Smt. Lajo Devi (PW-7) have not supported the prosecution. In one voice they have deposed that the prosecutrix had not disclosed anything about the alleged incident to them. In fact PW-6 had seen the prosecutrix for the first time when he was called in the house of Shri Puran Chand (PW- 8). As per the version of PW-8, a lady who was weeping had come to the bazaar and had stated that she had been raped by a man whose name she did not know. He learnt about the involvement of the accused in the incident only from the people who were discussing about the same. Importantly, he does not disclose the name or the particulars of such persons. Undisputedly, he is not an eye witness to the occurrence of the incident. Hence, his statement does not advance the case of the prosecution. 5 Deposition of Shri Pawan Singh (PW-9) to the effect that in the Bazaar prosecutrix had disclosed the name of the person who had committed rape as Sanju, in the presence of PW-8, stands contradicted by PW-8 himself. Importantly, PW-9 does not remember the name of the ladies who had accompanied the prosecutrix to Garli bazaar. He does not even remember the name of 10 to 12 persons who were present at the spot. His version is therefore unbelievable and in any case unreliable. Importantly, prosecutrix (PW-6) has materially contradicted herself while deposing in the Court rendering her sole statement to be untrustworthy. She has firstly deposed that after attending the Bhandara at “Baba Talau”, on her way back home when she reached the khad, accused snatched her bag and in order to get it back she followed him. He forcibly committed sexual intercourse without her consent. In the scuffle, while resisting, she received injuries on her breast and other parts of her body. She did raise hue and cry but no one came to her rescue as none was present there. After having committed sexual intercourse, accused ran away from the spot by taking her money and one silver chain. Thereafter, she sat down and started weeping. She narrated the incident to two ladies, who had come after attending the Bhandara. They had seen the accused running whom they identified as son of one Kishan Dass. They took her to the bazaar where the incident was 6 narrated to the people who had gathered there. This version of her stands belied by her subsequent statement wherein she has deposed that while the accused was trying to snatch her bag, he administered some medicine to her as a result of which she became unconscious. Thereafter, she did not know as to what the accused did with her. She categorically deposed that the rape was committed while she was unconscious and that she was carried to the bazaar by the ladies whom she had met in the Khad and regained consciousness only at about 7.00 p.m. in the bazaar. Her statement is absolutely incoherent. The prosecutrix has come out with yet another version. She has further deposed that in her attempt to get her bag back, she and the accused had quarrelled for about half an hour. Thereafter she was subjected to rape by the accused for about 45 minutes. She raised hue and cry but none came for her help at the spot during these 45 minutes. It was only thereafter that two ladies came at the spot. As per the version of the prosecutrix herself the spot of occurrence of the crime is just about 50 to 60 yards from the Garli bazaar. The path to the temple is also from the side of the Khad, where she was allegedly raped. Importantly, she does not name the two ladies. The incident is alleged to have taken place in broad day light at about 4.00/4.30 p.m. Undisputedly, on that day large number of people had gathered to attend the Bhandara at “Baba Talau” at Garli. It is quite unlikely and 7 unbelievable that accused would have continued to sexually assault the prosecutrix for more than 45 minutes and that too at a place which was likely to be frequented by the passer byes, more particularly for the reason that there was a Bhandara in the village on that day. The alleged offence is not stated to have taken place in absolute wilderness. Not only her testimony does not inspire confidence but there are material contradictions rendering her version to be false. The prosecutrix had come to Garli bazaar by bus. Undisputedly, her house is at a distance of about 8 to 9 kms. from the bazaar. It is not the case of the prosecution that the place of the occurrence of the crime is also towards the house of the accused. She has not explained as to why she choose to walk back home alone and that too in the evening hours of the day. Importantly, as per the Doctor no injuries were found on the private parts of the prosecutrix and the injuries found on her back and the breast were not fresh and could have been caused within a period of 48 hours prior to the occurrence of the alleged incident. This also belies her version. Further, it is her own case that she was not knowing the accused prior to the occurrence of the incident. She has not even disclosed the names of the ladies who had disclosed the particulars of the accused. PW-4, PW-5 & PW-7 have also not deposed that they had disclosed the particulars of the accused to 8 the prosecutrix. None has linked the accused to be the son of Shri Kishan Dass, allegedly seen running by the two ladies. The statement of the prosecutrix to this regard stands contradicted by the other independent spot witness. The prosecutrix is a married woman, hence the report of the Doctor that the prosecutrix was subjected to sexual intercourse cannot be used as a circumstance against the accused in the absence of any clear, cogent and convincing material to prove beyond reasonable doubt that it was the accused alone who had had sexual intercourse with the prosecutrix without her consent. No case for interference is made out by the prosecution. The learned trial Court was fully justified in acquitting the accused. The appeal is accordingly rejected and the bail bonds are discharged. ( Deepak Gupta ), Judge. ( Sanjay Karol ), Judge. March 4th, 2010. (rana)