1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 744 of 2000 Decided on December 1, 2010 ________________________________________________________________ State of H.P. …Appellant. Versus Saukat Ali ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Sanjay Jaswal, Advocate. Justice Sanjay Karol,J. For an offence, which is alleged to have been committed on 7.4.1998, accused was put to trial. In terms of judgment dated 20.9.2000 passed by Sessions Judge, Kangra at Dharamshala in Sessions Case No. 24-N/VII/99, titled as State of H.P. vs. Saukat Ali, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 7.4.1998 at about 5/6 A.M., prosecutrix (PW.3) had gone to answer the call of the nature in the fields near the nullah in Village Meeta, where accused caught her from the arms. When prosecutrix started crying he gagged her mouth with a piece of cloth. Thereafter, he forcibly took her through the jungle path to 2 Rehan. When prosecutrix tried to raise alarm she was threatened for life. He then took her to Nurpur and from there to Chamba. At Chamba, they stayed for two nights in the hotel by the name of National Lodge owned by Praveen Kumar (PW.9). There also accused threatened the prosecutrix. In the room of the hotel accused forcibly committed sexual intercourse with the prosecutrix. While making entry in the hotel record, accused concealed his identity by writing his name as Ashok Kumar instead of Saukat Ali. From Chamba, accused took the prosecutrix to village Gehar, where they spent the night under a “Sappar” (an open space) there also she was raped by him. Next morning, when prosecutrix started weeping, accused took her to Rehan and handed her over to her relatives, namely, Tanno, Naseeb Ali and Saleem, who in turn took the prosecutrix to Gangath and handed her over to her father Sh.Rirku Deen (PW.2). By written complaint (Ex.PD) dated 10.4.1998 Rirku Deen reported the matter to the police, on the basis of which FIR No.98/1998 (Ex.PL) was registered with Police Station, Nurpur, under Sections 363 and 366 IPC. Police got the prosecutrix medically examined through Dr.Neelam Mahajan (PW.1), who issued MLC (Ex.PA). Clothes of the prosecutrix i.e. Shirt (Ex.P-1), Salwar (Ex.P-2) alongwith vaginal smears was taken by the police during investigation. Inspector Jagan Nath (PW.11) also recovered clothes (Ex.P-3 and Ex.P-4)of the prosecutrix from the house of the accused on 14.4.1998. Accused, who was arrested on 3 13.4.1998, was got medically examined by Dr.Vishva Bandhu (PW.13), who issued MLC (Ex.PO). In order to determine the age of the prosecutrix, record from the Panchayat and certificate (Ex.PH) issued on the basis of the Births and Deaths Register (Ex.PJ) was obtained by the police. According to these certificates, prosecutrix was born on 3.4.1982. Report of the Chemical Examiner (Ex.PB) was obtained by the police on the basis of which Doctor opined that prosecutrix was subjected to sexual intercourse. With the completion of investigation, challan was presented in the Court for trial. 3. Accused was charged for having committed offence punishable under Sections 363, 366 and 376 IPC, to which he did not plead guilty and claimed trial. 4. In order to prove its case, the prosecution examined 14 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded. 5. The Court below acquitted the accused of the charged offence, hence the present appeal. 6. In order to prove its case, prosecution has to prove, beyond reasonable doubt that the accused had kidnapped the prosecutrix, who was below 18 years of age, from her lawful guardianship without the consent of her guardian with an intent that she would be compelled to marry or forced to have illicit intercourse with the accused. Prosecution also has to prove that accused forcibly committed sexual intercourse with the prosecutrix. 4 7. There is no dispute, that on 11.4.1998 Dr.Neelam Mahajan examined the prosecutrix and found no external marks of injuries on the body. No injuries were also found on the private parts of the prosecutrix and she was habitual of sexual intercourse. According to doctor Vishva Bandhu (PW.13), accused was also capable of performing sexual intercourse. 8. According to the prosecutrix, at the time of alleged offence i.e. 7.4.1998, she was 16 years of age. Now Dhian Singh (PW.8) has proved birth certificate of the prosecutrix, which records her date of birth to be 3.4.1982. The birth certificate and the extract of the register (Ex.PJ and Ex.PJ) establish this fact. Thus, as on the date of the alleged offence, prosecutrix was more than 16 years of age and less than 18 years of age. 9. Importantly, doctor (PW.1) had referred the prosecutrix to the Radiologist for determining the exact age. This however was not done by the police. Be that as it may, it stands proved that prosecutrix was more than 16 years of age at the time of the alleged offence. 10. In order to further prove its case, prosecution has relied upon the testimonies of Sh.Rirku Deen(PW.2) and Ms.Mashkeeno Bibi (PW.3) being the relevant witnesses. All others are witnesses to the recovery, police officials who carried out the investigation or are other official / police witnesses. 5 11. It is a settled position of law that if the version of the prosecutrix inspires confidence, then even without any corroboration her statement can be relied upon to hold the accused guilty of the charged offence. 12. In the instant case, the alleged offence took place on 7.4.1998. According to the prosecutrix, she stayed for the first two nights in a Hotel in Chamba and then the third night at the “Sappar” (an open space). Fourth day she was able to meet her father. Now in the instant case, complaint was lodged for the first time by the father (PW.2) on 10.4.1998. According to him, he searched for the prosecutrix for two days and only on the third day he lodged the report. He lodged the report three days after his daughter was found to be missing from the house. He states that he searched for her at the places of his relatives, but however, this fact is not corroborated by any contemptuous evidence, who are those relatives and where do they stay, is not substantiated. FIR recorded on 10.4.1998 does not disclose this fact. According to the father, he took the prosecutrix to the Police Station on 10.4.1998, yet police recorded her statement (Ex.PE) only on 16.4.1998. Now why is it that her statement was not promptly recorded by the police. In our considered view, delay in reporting the matter to the police and in recording the statement of the prosecutrix has rendered the prosecution version to be doubtful. In our considered view sufficient time was given to the prosecutrix to discuss and deliberate upon the 6 matter. 13. We may also note that the prosecutrix was got medically examined on 11.4.1998 yet importantly, prosecutrix did not disclose the history of the alleged crime to the doctor.. 14. Statement of (PW.2) that he met the prosecutrix at Gangath does not appear to be true. Had it been so, then the complainant would have definitely brought this fact to the notice of the police in writing just as it was so done by him on 10.4.1998. 15. We may also observe that according to (PW.2), he was informed about the incidence by the prosecutrix at Gangath, where Police Post is also located. He chose not to go to the police at Gangath but travel all the way to the Police Station, Nurpur. It is not his case that police was acting unfairly. From the aforesaid discussion, it is clear that the prosecution case, as discussed in the Court, does not appear to be true. 16. We have minutely examined the statement of the prosecutrix. No doubt in her examination-in-chief she has fully supported the prosecution, but however, in her cross- examination, she admits that she had never met the accused prior to the occurrence of the incident. She states that when she tried to raise alarm accused gagged her with a piece of cloth. Where is this cloth and why prosecutrix has not produced the same is not clear. She admits that from the jungle she first went to Rehan by bus. She did not raise any 7 alarm inspite of the fact that passengers were sitting close-by. She justifies so by stating that the accused had threatened her. We find that this version of hers not to be trustworthy for the reason that she had yet another opportunity of raising alarm at the time when she travelled from Rehan to Nurpur by bus. She admits that the bus had stopped at different places and passed through the Police Barrier at Tunnu-Di-Hutti where Constables were present. Not only that, she stayed for two nights at a hotel at Chamba. Even there she had ample opportunity of raising an alarm or fleeing away. It is not her case that she was always kept locked-up in the room. Further, she admits that from Chamba she went to Gehar and from there to Draman, where also there are several shops. Even then she did not raise any alarm. She admits that there is a Police Station at Gangath. Even there she did not inform the police about the incident. She had ample opportunity of resisting the advances of the accused but she chose not to do so. It is not her statement that she was subjected to confinement in the hotel room by force. She moved freely from place to place, over a considerable period of time in broad day light and in full Public gaze. Her version that accused gagged her mouth is not supported by any medical evidence. To us, it appears to be a case of prosecutrix having voluntarily left her house with the accused. Sexual intercourse, if any, appears to be consensual in nature. 8 17. It cannot be said that by leading cogent, convincing and reliable evidence on record, prosecution has been able to prove that the accused had kidnapped the prosecutrix. In fact, her statement to this effect is extremely vague and it cannot be said that essential ingredients, to constitute the charged offence stand proved on record. Version of the prosecutrix does not inspire confidence at all. 18. Most importantly, Naseeb Ali, Saleem and Tanno have not been examined by the police. 19. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge December 1, 2010 (Sanjay Karol) (Purohit) Judge