IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 257 of 2000 Date of decision: 08.10.2010 State of H.P. ... Appellant Versus Chuni Lal … Respondent Coram : The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General. For the respondent: Mr. Balbir Singh Chauhan, Advocate. Per R.B. Misra , J. (Oral): The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 8.2.2000, passed by learned Sessions Judge, Hamirpur Division, Hamirpur, in Sessions Case No. 13 of 1999, thereby acquitting the respondent/accused for offences under Section 376 and 511 of the Indian Penal Code in reference to F.I.R. No. 62 of 1999 dated 29.5.1999. 2. Prosecution case, in brief, is that on 29.5.1999, at about 4.00 P.M., the victim-prosecutrix (name not given) after coming alongwith her sister enquired from her grand-mother about the 1Whether reporters of Local Papers may be allowed to see the judgment? 2 whereabouts of her mother. She was apprised of that her mother had gone to Naunghi for purchasing the household articles, thereafter she alongwith her sister came near Baru tree about 300 yards from her house but the sister of the prosecutrix returned to the house after some time while the prosecutrix kept on waiting for the arrival of her mother. At about 4.00 P.M., accused came there as the accused was known to the prosecutrix, as he had worked in the house of the prosecutrix during the construction work of a house. Accused caught hold of the prosecutrix from her arm and took her towards the Nala and untied the salwar of the victim-prosecutrix and also untied his pant and laid upon the prosecutrix. She then raised hue and cry, which attracted Naresh Kumar, who further called Suresh Kumar and they both found the prosecutrix and accused in a naked position. Naresh Kumar and Suresh Kumar took both accused and the prosecutrix to the house of Jagdish Chand, Up Pradhan. The mother of the prosecutrix was also called from the house. The prosecutrix narrated the incident to her, thereafter, the mother of the prosecutrix took her to the Police Station and the report was lodged. The respondent/accused was charged for offences under Sections 376 and 511 I.P.C. and the case was committed to the Sessions Trial. 3. In order to prove its case, the prosecution has examined as many as 15 witnesses, whereas the accused/respondent through his statement under Section 313 Cr.P.C. stated that the witnesses have deposed falsely against him and further explained that on 29.5.1999, the prosecutrix was accompanying him to her house. When he reached the Nala, he told her to keep his polythene bag of sugar with her as he went to answer the call of nature in the Nala and when he returned, 3 the prosecutrix had torn his polythene bag and the sugar had fallen down on the path. He got furious and slapped her on her face. She started crying and on hearing her cries, Naresh Kumar and Suresh Kumar came to the spot and they gave beatings to him and they took him alongwith the victim-prosecutruix to the house of Jagdish Chand. 4. PW-1 Dr. Archna Soni medically examined the prosecutrix on 30.5.1999 at about 4.00 P.M. and on examination, the victim-prosecutrix was found to be of 8 years and on medical examination found no blood stains on Salwar as well as on Kameej and also did not notice any kind of injury or violence on face, breast, neck, abdomen, back, inner side of thighs, buttocks or any other part of the body of the victim and in the cross-examination, (PW-1) also reiterated the same version as that of examination-in-chief. PW-1 has not noticed any mark of violence but indicated that minor congestion on the inter side of the labia minora, which could be caused if a girl jumped from height, then such type of congestion can occur. 5. PW-2 Dr. S.K. Sharma on examination of accused noticed that secondary sex characters like pubic hair and axillary hairs were found well developed. PW-3 prosecutrix, in support of the prosecution case, has stated that the accused was known to her because he was doing the construction work of their house and the accused at that moment caught her from her arm and took her towards Cho (Nala), thereafter he untied her salwar and untied his pant. The accused laid upon her and at that time she made hue and cry. On hearing cries, Guddu alias Naresh and Suresh both came to Nala and rescued her from the clutches of the accused. Thereafter, Naresh took victim and Chuni Lal, accused, to his house and the mother of the 4 victim also arrived there and the entire incident was narrated to her. She went alongwith her mother to the Police Station. In her cross- examination, PW-3 (victim-prosecutrix) has stated that it is correct that when one comes from Naunghi to her house, the path is from the Nala. She further admitted that when accused met her, he was carrying potato, sugar, onion and packet of dry milk. Chuni Lal was going ahead and victim was following. It was also stated that the accused kept the articles with her and went to the Nala for urine. According to the victim, the envelope of sugar was broken by her and on this, the accused gave her a slap and she started weeping and when she was weeping, Naresh and Suresh came on the spot. She told both of them that accused Chuni Lal gave slap to her and on that accused was given beatings by Naresh and Suresh. The victim- prosecutrix has also stated that a day earlier, accused worked in her house for about one month. Subsequently, the victim-prosecutrix stated that the accused did nothing with her except he gave one slap to her. 6. Minor contradictions are being noticed and on her own testimony PW-3 (victim-prosecutrix) has not stated in examination-in- chief, that she was sexually assaulted or some ‘Bura Kaam’ was done with her. She only stated that her salwar was untied and she was laid and the accused had also untied pant and the accused laid upon her, however, she has not reiterated this version of sexual assault or anything in that connection in the cross-examination. Whereas in her cross-examination, she has very emphatically stated that it is correct that the accused did nothing except giving slap to her. 5 7. PW-4 Salochna Devi, mother of the victim-prosecutrix, has reiterated the prosecution case. 8. PW-5 (Naresh Kumar) son of Vice President of Panchayat, while going to his house, saw at a distance that the accused was followed by a girl in a Nala. He suspected some foul play, so he went to the Nala and heard cries of the girl. He then called Suresh, who also joined him and had noticed that the victim- prosecutrix and accused were both in naked position and the accused was lying on the victim-prosecutrix. On seeing them, the accused immediately got up. 9. PW-6 Suresh Kumar has stated that on 29.5.1999 at about 4.00 P.M., while returning to his native village, had given call by Naresh Kumar from a Nala. Naresh Kumar was at a distance of about 15-20 yards away from him near Nala and has also observed that the accused and the prosecutrix was in naked position and the accused was found lying upon the prosecutrix. On seeing, the accused immediately got up. 10. PW-7 Jagdish Chand has stated that the accused and victim-prosecutrix had been brought to his house by his son alongwith Suresh Kumar. His son Naresh had narrated the incident to him. PW-8 Jagdev Singh, the Pradhan of village, had tried to support the prosecution case, without seeing the occurrence. PW-9 Rulia Ram had made entry in the birth register and according to him, the date of birth of the prosecutrix is 22.1.1991. PW-10 Reeta 6 Kumari, Police Constable, PW-11 Sunil Chand, PW-12 Ravinder Singh, PW-13 Prem Singh, PW-14 Anant Ram and PW-15 Bakshi Ram, in discharge of their official duties have endeavored to support the prosecution case to the extent role assigned to them. However, they are not very material for proving the prosecution case. Whereas, the accused/respondent in his statement under Section313 Cr.P.C. has denied the prosecution case and has stated that he gave a slap to the victim, who started weeping and on that Naresh and Suresh Kumar gave beatings to the accused and thereafter, he was taken to Pradhan. 11. On analysis of the testimonies of the prosecution witnesses and materials on record, we note that on medical examination, no mark of violence or injury was found on the body of the victim-prosecutrix, who herself has not stated that she has been sexually assaulted. PW-5 Naresh Kumar and PW-6 Suresh Kumar have tried to make out a case, however, that is not in consonance with the prosecution case as in view of the testimony of PW-3 (victim- prosecutrix), both came after hearing the cries. The victim- prosecutrix herself has very categorically stated that the accused has done nothing except giving slap to her. In these circumstances, in our considered view, the testimony of the victim-prosecutrix is not reliable and testimony of witness PW-5 (Naresh Kumar) and PW-6 is also not trustworthy. Therefore, in the facts and circumstances of the case, the prosecution has failed to prove its case beyond reasonable doubt and prosecution has also failed to bring home the guilt to the accused/respondent. There is no scope for interference in the 7 impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 12. Bail bonds, furnished by the respondent, are hereby discharged. ( R.B. Misra ), Judge ( V.K. Ahuja ), October 08, 2010 Judge (BSS) 8