IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 32 of 1995. Reserved on : 20.11.2008 Date of decision: 29.12.2008 State of H.P. …. Appellant. Vs. Amrish Kumar ... Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 Yes. For the appellant-State: Mr. Rajesh Mandhotra, Dy.Advocate General. For the respondent: Mr. Ajay Sharma, Advocate. Per Deepak Gupta, J. This appeal by the State is directed against the judgement of the learned Sessions Judge, Shimla, in Sessions Trial No. 36-S/7 of 1991 decided on 18th December, 1993 whereby he has acquitted the accused of having committed offences punishable under Sections 376 and 506 of the Indian Penal Code. The prosecution case, which unfolded during the course of the trial, is that on 21.3.1991 in the evening, the prosecutrix left her school and came by bus to Summer Hill. Thereafter, she was walking down the path to her house in village Sangti. On the way she met the accused who enquired if she (the prosecutrix) had seen his dog. He then started walking with her and enquired her name, etc. When the accused and the prosecutrix had walked some portion on this path the accused pointed out another path to the prosecutrix and told her that his dog might have gone that way. He asked the prosecutrix to accompany him. Firstly, she refused to accompany him but later on she agreed on the insistence of the accused and since she could 1 Whether the reporters of the local papers may be allowed to see the Judgment .yes. 2 reach her house by this smaller path also. After the two had walked some distance on this path leading to the University there was a diversion where the prosecutrix had to go down to her house. At this point, the accused forcibly took the prosecutrix towards some bushes. He got her clothes removed. He removed his own pants and thereafter raped the minor girl. She started crying. On hearing her cries, two boys Surinder PW-4 and Narinder PW-9 rushed to the spot. They saw the accused lying on top of the prosecutrix. But when he heard these two persons coming, he ran away from the spot. Thereafter, Narinder and Surinder pacified the young girl who was crying. They asked her to wear her clothes and sent her home. Then they searched for the accused. While they were searching for the accused they met Rakesh Chauhan who joined them in the search. About an hour later they traced out the accused in the forest. Despite resistance by the accused they apprehended him and then took him towards the police station. On the way they met a police party and handed over the accused to the police party. In the meantime, the prosecutrix had gone home and informed her mother, PW-2 Meera Shandil, about the incident. The father of the prosecutrix was at that time serving in district Kinnaur and was not at home. The mother then narrated the entire incident to her landlord Brahma Nand, PW-11, who advised her to report the matter to the police. Thereafter, the mother accompanied by the landlord and the prosecutrix went to the police station where she lodged the complaint Ext.PA. The prosecutrix was got medically examined and the police completed the investigation. Thereafter, challan was filed against the accused who pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses. The case of the accused was of denial simplicitor and according to him a false case had been 3 lodged against him at the instance of PW-4 Surinder and PW-9 Narinder because of some earlier rivalry. The learned Sessions Judge acquitted the accused. Hence, the present appeal. We have heard Shri Rajesh Mandhotra, learned Deputy Advocate General on behalf of the State and Shri Ajay Sharma, learned counsel for the accused. Shri Mandhotra has contended that the judgement of the learned Sessions Judge is totally perverse and that the learned Sessions Judge has discarded the statement of the prosecutrix, which is fully supported by the other witnesses as well as the medical evidence, without any reasonable ground. It has been urged by Shri Ajay Sharma, learned counsel for the respondent-accused that since the accused has been acquitted, we in exercise of our appellate jurisdiction should not interfere in the order of the learned trial Court. The principles relating to the powers of the Appellate Court while dealing with an appeal against the acquittal have been enumerated by the Apex Court in Chandrappa and others vs. State of Karnataka (2007) 4 SCC 415. The Apex Court held as follows:- “15. Bare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal. 16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused 4 having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court.” Thereafter the Apex Court culled out the following principles:- “42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” Keeping in mind the aforesaid principles, we have considered the case in hand. We are aware that we are dealing with an appeal against acquittal. 5 We have, therefore, dealt with the evidence both oral and documentary in detail. Before we deal with the rival contentions of the parties, it would be apposite to refer to the main grounds which weighed with the learned Sessions Judge while acquitting the accused. 1. Lack of injuries on the private parts of the prosecutrix except mild redness on the inner side of the right labia minora. 2. No blood marks found by the doctor on the underwear of the prosecutrix. 3. No injuries on the private part of the accused. 4. The fact that the prosecutrix was walking even after she was subjected to a sexual assault. 5. No injury on the back of the prosecutrix. 6. The fact that the accused was apprehended in the forest militated against the theory of rape. 7. The accused who is in final year of the MBBS course could not have done such an act. 8. A false case had been planted against the accused at the instance of Surinder, Bhrama Nand and Narinder, who are interested witnesses, having inimical relations towards the accused. Evidence led in the case: The prosecutrix was examined as PW-1. No oath was administered to her since the Court found that she was a child of tender age and could not understand the sanctity of an oath. The prosecutrix has clearly stated that the accused met her when she was returning to school. He walked with her and enquired her name. Then he took her to the path leading to the University, and further down the path, he forcibly took her to the bushes. He asked her to remove her school bag and her clothes. She was left wearing a 6 vest only. The accused thereafter removed his pants. The accused then made the prosecutrix lie down on the ground, climbed on top of her and inserted his penis into her vagina. The prosecutrix felt pain and cried out loudly. At this stage, the accused threatened the prosecutrix that in case she made a noise he would kill her. According to the prosecutrix, on hearing her cries, Surinder Bhaiya (PW-4) and Narinder Bhaiya (PW-9) came to the spot and on seeing them the accused put on his pants and fled away. Thereafter, these two witnesses asked the prosecutrix to wear her clothes and go home and they went to apprehend the accused. On coming home, the prosecutrix narrated the entire occurrence to her mother PW-2 since her father was not at home. Thereafter, she reported the matter to the landlord PW-11 Brahma Nand and then they all went to the police station. The prosecutrix has identified her underwear Ext.P-1 which she was wearing at the time of the occurrence. The prosecutrix has been cross-examined at length. According to her she did not know the accused earlier and the accused himself had told his name to her. She states that due to the sexual act forcibly committed by the accused, she had slight bleeding, i.e. 2 to 3 drops of blood only, and had informed her mother about the same. She states that she knows PW-4 Surinder and PW-9 Narinder since Surinder is the son of landlord and Narinder is a friend of Surinder. She has denied the suggestion that she has made a false statement at the behest of these persons. She states that she is not aware that the relations between the accused on one hand and the landlord Brahma Nand and his son Surinder, on the other hand, are strained. PW-2 is the mother of the prosecutrix. She states that on 21.3.1991 at about 5.30 p.m the prosecutrix came home crying. On enquiry as to why she was crying, she told her mother that one Amrish uncle had committed sexual intercourse with her. The prosecutrix narrated the entire story to the 7 mother. The mother undressed the prosecutrix. The underwear Ext.P-1 was dirty and blood stained. The witness states that since her husband was serving in Kinnaur and was not at home she narrated the entire incident to her landlord, PW-11, Brahma Nand who advised her to report the matter to the police. Thereafter, she accompanied by Brahma Nand and the prosecutrix, went to the police station and reported the matter. In cross- examination she has stated that the prosecutrix was bleeding at the time when she had examined her at home and blood was oozing out of her vagina. According to her, she had made a statement to the police about the blood noticed by her. She was confronted with the F.I.R where there is no mention of the bleeding. She denied the suggestion that a cry raised at the place of the occurrence could be heard at her house. According to her such cries could be heard on the road but not in the house. The mother has denied the suggestion put to her that she is making a false statement at the instance of her landlord and she also denied the suggestion that the entire story has been cooked up at the instance of her landlord Brahma Nand and his son Surinder. PW-4 Surinder Kumar Sharma has supported the prosecution version to the hilt. According to him, on 21.3.1991 between 5.15 and 5.30 p.m when he alongwith Narinder were going from his house at Sangti to the University Library they heard cries coming from the bushes. On hearing such cries these two persons rushed towards bushes where they saw from a distance that the accused was lying on the top of the prosecutrix. On seeing the witnesses, the accused put on his pants and ran away. They pacified the prosecutrix and asked her to go home. They then made a search for the accused and found him hiding in the bushes in another portion of the jungle after about one hour. They over-powered the accused and took him to the 8 police station. On the way they met the police party. In cross-examination, this witness states that the distance from the place from where they heard the cries and the spot where the prosecutrix was raped was about the 50 to 70 feet and there was a small foot path (Pagdandi) connecting the road to the place of occurrence. The witness denied the suggestion put to him that at the time of the anti reservation protests in the year 1990 he had quarrelled with the accused on the question of reservation. He also denied the suggestion that prior to the incident another quarrel had taken place between this witness and his father on the one side and the accused on the other side on account of his cousin Annu. He denied the suggestion that any F.I.R. was recorded in the Police Station Boileauganj in this regard. He denied the suggestion that due to enmity, a false case had been lodged against the accused. It would be pertinent to mention that a suggestion has been put to this witness that at about 6 or 6.30 p.m on 21.3.1991 this witness alongwith PW-9, Narinder went to the accused and requested the accused to check up the room mate of Narinder, who was unwell and that the accused advised them to take the said person to Dr. Khanna. Another suggestion has been put to this witness that when this witness, alongwith Narinder, Rakesh and accused reached near the house of Dr. Khanna they started beating up the accused. He denied these suggestions and also denied the suggestion that Dr. Khanna intervened in the quarrel and asked them to report the matter to the police. PW-9 Narinder Kumar has totally supported the prosecution version. In cross-examination he states that at the relevant time he used to reside in the University Hostel. He admits that he is well known to PW-4 Surinder. He denied the suggestion that he has made a false statement or that the accused has been falsely implicated to settle scores on account of some 9 previous enmity between the accused and Surinder. He also stated that when they were running up from the road to the place of occurrence after hearing the cries of the prosecutrix and were at a distance of 8 to 10 yards, the accused ran away. After sending the prosecutrix to her home, they searched for the accused. While they were searching for the accused they met Rakesh Chauhan, who joined them in the search and the accused was apprehended after 1/½ - 2 hours. He denied the suggestion that his room mate was ill on the date of the occurrence. Interestingly, the suggestions put to this witness are contrary to the suggestions put to PW-4. This witness denied the suggestion that his room mate was ill or that he and Surinder went to Dr. Khanna at about 7 - 7.30 p.m and requested him to check up the room mate. The suggestion put to this witness is that Dr. Khanna refused to examine the room mate and advised PW-4 and PW-9 to take the room mate of PW-9 to the accused who is a doctor. He also denied the suggestion that thereafter they went to the house of the accused and had tea at his house. This witness had also denied the suggestion that after taking tea when the accused came out of his house they started beating up the accused. According to this witness, PW-4 Surinder had never talked about any quarrel between him and the accused on any account. PW-10 Rakesh Chauhan has also supported the prosecution version. He is also student in H.P. University. He was coming home from the university library when he met PW-4 Surinder and PW-9 Narinder, who told him that they were searching for the accused since he had raped the prosecutrix. He joined them in the search and they apprehended the accused in the forest. This witness admits that he is a tenant of Surinder and that he has cordial relations with both Surinder and Narinder. According to him the accused was found in the jungle at about 8 p.m. He states that he has no 10 knowledge that any quarrel had taken place between Surinder and the accused. PW-11 Brahma Nand states that PW-2 Meera Shandil informed him on 21.3.1991 at about 5.45 p.m about the incident which had happened with her daughter. Then he asked the prosecutrix as to what had happened. The prosecutrix told him the entire story. He has denied that during the Mandal Commission agitation he, Surinder and Narinder had quarrelled with the accused. PW-7 Dr. Mrs. Kumar examined the prosecutrix at about 10 p.m. on 21.3.1991 the date of occurrence. She did not find any semen stains on the pubic hair, thighs and other parts of the body of the prosecutrix. The hymen was intact but there was mild redness on the inner side of the right labia minora. White discharge was present. Swab and slides were taken and sent for chemical examination. She has opined that the mild redness present on the inner side of the right labia minora could be caused by penetration of penis. In cross-examination, she has admitted that such redness could also be caused due to itching, or inflammation due to infection. She has further stated in cross-examination that in an act of coitus between a virgin of 11 years and a fully developed male the hymen may be torn, there may be bleeding and there will be local redness/tenderness. Except the redness she found no other signs present on the prosecutrix. She has, however, categorically denied the suggestion that in case the redness was caused due to penetration there ought to have been contusion on the labia minora. She has also categorically stated that in case there is no resistance by the girl there would be no injuries on her back and this would also depend on the nature of the surface where the sexual act was committed. She has stated 11 that she did not see fresh blood marks on the underwear of the prosecutrix taken into possession by her. PW-3, Dr. B.R.Sharma examined the accused. He found six injuries on the person of the accused. These injuries were on his face, finger and chest. No injury was found on the penis or the other private parts of the accused. The doctor found absence of smegma and according to him this was indicative of recent indulgence in sex. In cross-examination he states that the accused had informed him that the injuries were caused when he was beaten up by some persons including the police. The witness has also stated that in case an adult person engages in sexual intercourse with a virgin aged 10 to 12 years injury would normally occur to the private parts of the male. Age of the prosecutrix: As far as the age of the prosecutrix is concerned, the school record has been proved by PW-8, in which the date of birth of the prosecutrix is recorded as 17.5.1981. This witness has not been cross-examined at all and, therefore, this date of birth has been accepted by the accused. This date of birth finds corroboration from the testimony of the dental surgeon Dr. S.N.Tuli, PW-5, who has opined that the dental age of the prosecutrix is not more than 12 years and the Radiologist Dr. Mrs. A.Santoshi, PW-6, has opined that the skeleton age of the prosecutrix is between 10 to 14 years. None of these witnesses has been cross-examined. The Apex Court in Sannaia Subba Rao and Ors. Vs. State of Andhra Pradesh, JT 2008 (8) SC 136 has clearly held that the school register is admissible in evidence to prove the date of birth of a person. In any event in the present case nobody has challenged the date of birth of the prosecutrix. Therefore, it is apparent that she was less than 11 years of age at the time of occurrence. 12 Does the statement of the prosecutrix inspire confidence: The law by now is well settled that an accused in a rape case can be convicted even on the sole testimony of the prosecutrix so long as her statement inspires confidence. The prosecutrix is not to be treated like an accomplice. She is the victim of a dastardly crime. Corroboration in every case is not required but in the present case there is more than sufficient corroboration to the statement of the prosecutrix also. We have gone through the statement of the prosecutrix in great detail. The version given by her unfolds in the most natural manner. It is apparent that she is telling the truth. She is a girl of tender age. She was just about 10 and ½ years old at the time of the incident and was little more than 11 years old when her statement was recorded. Her statement has a ring of truth. The version of the prosecutrix is also corroborated in all material particulars by the statements of the other witnesses, especially the mother PW-2, PW-4 Surinder, PW-9 Narinder and PW-11 Brahma Nand. It is only natural that the girl would have immediately informed her mother about the unfortunate occurrence. Since the father of the prosecutrix was not at home, the mother took the landlord into confidence. The landlord, PW-11, asked the mother to immediately report the matter to the police and the fact is that the matter was reported to the police within a few hours and the F.I.R. Ext. PA itself was lodged on the same date at 7.30 p.m i.e. barely two hours after the incident. Therefore, there was no time to either embellish the facts or to cook up a false story. PW-4 Surinder and PW- 9 Narinder have supported the version of the prosecutrix on all material aspects. They both heard the cries of the prosecutrix when she was being raped and immediately went towards the direction from where the cries were emanating. On reaching the spot, they pacified the prosecutrix, made her 13 wear her clothes and sent her home and then followed the accused to apprehend him. They apprehended the accused about an hour or two later. Shri Ajay Sharma, learned counsel appearing on behalf of the accused has contended that the statements of the prosecutrix and her mother cannot be relied upon since they both stated that the prosecutrix was bleeding and there was blood on