IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 302 of 2002. Judgment reserved on 16.4.2009 Date of decision: 21.4.2009 -__________________________________________________ State of H.P. …….Appellant Vs. Jai Singh .. Respondent ______________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. M.S. Thakur and Mr. Inderjeet Singh Narwal, Advocates. Kuldip Singh, Judge The respondent was prosecuted in Case No.59/2 of 98 for having committed offence punishable under Section 354 IPC in FIR No.170 of 1998, Police Station, Shimla (East) but was acquitted by learned Judicial Magistrate Ist Class, Court No.3, Shimla on 18.12.2001, hence State has come in appeal. 2. The prosecution case in brief is that PW-3 Madan Singh accompanied with the prosecutrix reported at Police Station on 16.10.1998 and stated that prosecutrix was studying in the 3rd standard at Primary School, Ganoti which had lunch break at 1 p.m. The accused called prosecutrix from the school where she was playing and asked water from the bottle for washing his hands. The girl gave him Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 water from the bottle, thereafter accused took her in his room and asked her to take biscuits from TV rack, the accused bolted the door and laid the prosecutrix on cot. He undressed himself and removed the pajami of the prosecutrix. The prosecutrix got frightened. She tried to raise alarm, Jai Singh put his hand on her mouth. He was about to rape the prosecutrix but in the meantime the school bell rung and Jai Singh released the prosecutrix. He told her not to disclose this incident to any body. The prosecutrix disclosed the incident to her friend Suman but on 14.10.1998 the incident was not disclosed to him by prosecutrix out of fear however, the prosecutrix had narrated the incident to her mother. He came to know about the incident on 15.10.1998 in the evening through his wife. He enquired from his daughter and then came for reporting the matter. The prosecutrix was got medically examined and doctor issued MLC Ex.PW/4/A. The dental opinion Ex.PW-5/A was also obtained, site plan Ex.PW-11/A was prepared, recoveries were made, statements of witnesses were recorded and the report from Forensic Science Laboratory was also obtained. On completion of investigation, challan was presented against respondent for offence punishable under Section 354 IPC. The respondent was accordingly charged. The prosecution has examined 12 witnesses to bring home the charge. The statement of respondent was recorded under section 313 Cr.P.C., he denied the prosecution case. DW-1 Gulab Singh was examined in defence and muster roll Ex.DW-1/A was placed on record. The learned Judicial Magistrate has acquitted the respondent, hence appeal by the State. 3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the appellant and Mr. M.S. Thakur, Advocate, learned 3 counsel for the respondent and have also gone through the record. The learned Addl. Advocate General has submitted that the learned Judicial Magistrate has erred in acquitting the respondent in as much as the prosecution has proved the case against the respondent by leading oral and documentary evidence. The prosecutrix has supported the case of the prosecution. PW-1 Meera Devi mother, PW-3 Madan Singh father of the prosecutrix have corroborated the statements of the prosecutrix. On the contrary, learned counsel for the respondent has submitted that the respondent has been falsely implicated in the case. The learned Judicial Magistrate has rightly appreciated the material on record. The view taken by learned Judicial Magistrate emerges from the evidence on record and in appeal simply because other view is also possible is no ground to convert the acquittal into conviction. 4. PW-1 Meera mother of the prosecutrix has stated that on 14th day of the year 1998, Veena told her that prosecutrix was called by the accused in her room and asked her to eat biscuits. He bolted, the door and laid prosecutrix on the bed, caught hold her from arms and removed her pajami, thereafter Jai Singh removed his pant. The prosecutrix raised alarm, her mouth was shut, but later on accused released her. This happened during lunch time. Veena narrated the incident to her on that day at 7 p.m. The prosecutrix had gone to sleep by that time, therefore, she enquired from her on the next day. Thereafter her husband reported the matter to the police. The prosecutrix on enquiry also narrated the incident to her and police recovered pajami of prosecutrix vide memo Ex.PW-1/A and said pajami is Ex.P-1. In cross-examination she has stated that there are 5-6 houses nearby. The family of Jai Singh lives with him. The parents of 4 Jai Singh also lives with him. It takes about 15-20 minutes from their residence to the police station. Joginder and Jai Singh are the real brothers. She denied that they have any rent dispute with Joginder Singh. 5. PW-2 Rita Sharma has stated that she was head mistress in Ganoti school in the year 1998. She did not support the prosecution case and was declared hostile and was cross-examined by the prosecution. In cross-examination she has denied portion A to A of her statement mark-X. In cross-examination conducted by the defence she has stated that on 14th she had not seen Jai Singh in school compound. PW-3 Madan Singh has stated that he came to know of the incident on 15th evening from his wife and he reported the matter on 16th. In cross-examination he has stated that he does not know on that date father, mother and wife of the accused were in their house or not. The accused was daily wager and used to remain on duty from 10 a.m. to 5 p.m. He denied that on 14.10.1998, the accused was not in his house but was on duty. He has also stated that his wife came to know the incident on 14th and on 14th he came to his house. He had submitted a written complaint to the police which was not shown to him at the time of making the statement. PW-4 Dr. Anjli Soni has stated that she had examined prosecutrix on 16.10.1998 and issued MLC Ex.PW-4/A. In cross-examination she has stated that there was no sign of sexual activity upon Pooja. Dr. R.P. Luthra, Associated Professor, Dental College, Shimla had examined prosecutrix on 20.10.1998 and issued MLC Ex.PW-5/A. He has stated that the prosecutrix was 7 ½ to 8 ½ years old at the time of examination. PW-6 Negi Ram has proved memo Ex.PW-1/A and is a formal witness. 5 6. PW-7 prosecutrix, aged 10 years, has stated that she was playing during recess, the accused called her and asked her to take biscuits from TV rack. After taking biscuits she was going, the accused pulled her inside and bolted the door, no other person was in the house. He caught hold her from arms and laid her on the bed. He removed her panjami and also his pant. She was frightened and cried, the accused shut her mouth. In the meantime, the children raised the noise that recess was over. Upon this accused released her. The accused told her not to disclose the incident to any body otherwise he would kill her. She was weeping while going, Suman her class fellow met her, she narrated the incident to another class fellow Meena. In cross- examination she has stated that she had visited the residence of Jai Singh prior to the date of incident and during those visits accused never misbehaved with her. She was seen by Suman when she went inside the room of accused. In the morning she was told about her statement. 7. PW-8 Sohan Singh constable has stated that he deposited one packet on 17.10.1998 at FSL, Junga. PW-9 Suman Lata, aged 10 years has stated that prosecutrix did not tell her anything during recess and the same thing she told the police. She did not support the prosecution and was declared hostile and was cross-examined by the prosecution. The prosecutrix was not called in her presence nor she heard any cries of the prosecutrix. In the end she has stated that she does not know anything what happened with prosecutrix. PW-10 Meena, aged 12 years has stated that she does not know what happened with prosecutrix during recess. Volunteered, mother of the prosecutrix told her dirty things. The prosecutrix did not tell her that accused called her. She did not support the prosecution and was cross- 6 examined by the prosecution. In cross-examination conducted by the prosecution she has stated that she did not hear any shriek of the prosecutrix. She has stated that she has heard nothing till date about the case. She has also stated that she has not given portion A to A of her statement mark-X. 8. PW-11 ASI Jaspal Singh is the investigating officer. PW-12 constable Hem Raj is a formal witness regarding the sending of packet to FSL, Junga. DW-1 Gulab Singh, Senior Clerk in the office of Executive Engineer, Electric Division No.1 HPSEB, Shimla has proved muster roll Ex.DW-1/A from 26.9.1998 to 25.10.1998, showing that accused was on duty on 14.10.1998 from 9 a.m. to 5 p.m. The accused was working at Vikas Nagar which is at the distance of 9-10 K.M. from Tuti Kandi. 9. PW-1 Meera Devi mother of the prosecutrix has stated that Veena disclosed the incident to her on 14th at 7 p.m. It appears Veena or Meena names are of one girl only. She is being referred in the statements as Veena or Meena. PW-3 Madan Singh father of the prosecutrix has stated that his wife came to know of the incident on 14th and his wife told the incident to him on the same day. The FIR was lodged on 16. 10.1998. There is no explanation why the FIR was not lodged at least on 15.10.1998. The delay in lodging the FIR has not been explained by the prosecution. PW-7 prosecutrix has stated that she had narrated the incident to Suman and Veena her class fellows, both of them were examined by the prosecution but both of them did not support the prosecution on any point. PW-2 Rita Sharma head mistress of Govt. Primary School, Ganoti has stated that on 14th during lunch hours she had not seen Jai Singh in the school compound. She has 7 thus contradicted the prosecution story that on 14.10.1998 during lunch time accused initially asked the prosecutrix to give him water from the bottle for washing hand and thereafter he called prosecutrix inside the room. The accused has completely denied the prosecution case. PW- 4 Dr. Anjli Soni has stated that on examination of prosecutrix she found no sign of sexual activity upon prosecutrix. The prosecution case is that the accused was about to rape the prosecutrix but in the meantime, the lunch break of the school was over and children started raising noise and therefore, accused released the prosecutrix. In case the respondent was about to rape the prosecutrix then some signs of resistance on the person of the prosecutrix must appear which have been contradicted by PW-4 Dr. Anjli Soni. 10 It has come on record that the respondent was living with his family consisting of his wife, children and parents. The prosecution case is that prosecutrix raised cries when respondent was about to rape her. The prosecutrix has stated that in the room in which respondent laid her on the bed there was no one else. She has not stated that she entered in any other room of the house of the respondent or the house of the respondent consisted of only one room. PW-11 ASI Jaspal Singh has stated that in the house of accused, mother, father and children of the accused were residing but there is no definite evidence on record that on the date of incident no family member of respondent was in the house. It is reasonable to infer that ordinarily parents and wife of the accused would be in the house at the time of alleged occurrence and in their presence the accused would not attempt to commit rape knowing fully well that the victim would raise alarm. The defence has brought on record muster roll Ex.DW-1/A, in which on 14.10.1998 the respondent 8 was shown on duty . DW-1 has stated that on that date respondent was on duty from 9 a.m. to 5 p.m. The working place of the respondent was about 9-10 K.M. from the place of occurrence. In these circumstances a suspicion has been cast in the prosecution story. The case becomes doubtful and therefore, sole testimony of prosecutrix, a child witness is not enough to convict the respondent. The prosecutrix in her cross- examination has stated that in the morning she was told about her statement. Therefore, if no corroboration, some assurance from other evidence is required in the present case, so as to convict the respondent on the basis of sole testimony of the prosecutrix, which is lacking in the present case. The prosecution has come forward with the story that immediately after the incident the prosecutrix narrated the incident to her friends Suman and Veena but both of them did not support the prosecution. The learned Judicial Magistrate has rightly appreciated the material on record. There is no perversity in the impugned judgment. The prosecution has miserably failed to bring home the charge against the respondent. No case for interference is made out. Resultantly, appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh) Judge April 21, 2009 (sks)