1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No.417 of 1999 Reserved on : 13th July, 2010 Date of Decision: 20th August,2010 State of Himachal Pradesh Appellant Versus Prem Singh and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the respondent: Mr.Malay Kaushal, Advocate, vice Mr. Ramakant Sharma, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on 11.5.1997, accused were put to trial. In terms of judgment dated 18.5.1999 passed by Sessions Judge, Solan, in Sessions trial No.14-S/7 of 1998, titled as State of H.P. vs. Prem Singh and others, accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on the direction of Superintendent of Police, Solan, Kanwar Virender Whether the reporters of Local Papers are allowed to see the Judgment? 2 Singh (PW-8), Dy. S.P., Parwanoo, on 17.5.1997 at about 8.10 p.m. recorded the statement (Ext.PW-1/A) of prosecutrix (PW- 1) under Section 154, Cr.P.C. It is alleged that prosecutrix alongwith her husband Jeet Ram (PW-2) reside in a rented accommodation at Village Koti. Her husband works as a labourer in Himalya Juice Factory. Previous Sunday her husband returned back from duty at about 2.30 p.m.. At about 3.30 p.m. they alongwith one Bhagat Singh went to Garkhal. Bhagat Singh earlier used to run a Punjabi Dhaba at Koti and had later shifted to Chandgiarh from where he come on that date. They had gone to Garkhal to explore the possibility of opening up a cold drinks shop. At Dharampur Bhagat Singh and Jeet Ram bought a bottle of liquor and on way to Garkhal they drank the same. Just a little distance short of Garkhal, Bhagat Singh stopped the vehicle and asked them to walk up the hill to enjoy cool breeze. It had come dark, therefore, the prosecutrix refused to accompany Bhagat Singh. Her husband was heavily drunk therefore, she started walking with him towards Garkhal. On way she enquired from a vegetable seller about bus timings and was told that all vehicles for Garkhal had left and no bus was to come. At that time one Taxi driven by one boy of short height came. Two boys one tall and another with a beard were sitting in the vehicle. They offered to drop the prosecutrix and her husband to Koti and accordingly they sat in the Car. After covering a distance of 3 about 1-1 ½ kms. prosecutrix and her husband were asked to alight from the vehicle on the pretext that the tyre of the vehicle had punctured. The moment they alighted the vehicle, man with a beard caught hold of her husband and started giving him beatings and the tall boy dragged the prosecutrix into the van. Then they drove away the vehicle leaving her husband on the road. After covering a distance of about 2 - 2 ½ kms. the vehicle was stopped and all three of them, turn by turn, forcibly committed sexual intercourse with her. All of them told her that there was no need to worry and that they were take her to a hotel. The vehicle was driven to Garkhal and the man with a beard took her to a room where one old man was also present. The other two persons then went away. In the room both the old man and the man with beard forcibly committed sexual intercourse with her. The man with the beard asked her to cook chapattis as she had refused to take rice. After cooking Chapatis she had her meals. Again both of them committed sexual intercourse with her. Then two persons came from the inner room and inquired as to whether prosecutrix was married or not. She informed them that not only she was married but also had two children. By saying as to why the girl was being troubled they went out. After some time police arrived and took them to Police Chowki, Garkhal. In the morning they were taken to Police Station Kasauli where after about two hours her husband and sister also came. 4 Since the SHO was not in the Police Station, she narrated the incident to one person. Two accused persons were then beaten up. On query her husband told the Police that since he was a poor man and had small children, therefore, he did not want to go to Court. Then the S.H.O. called her sister and gave her ` 1000 and got all of them dropped in a Maruti Car at Parwanoo. 3. On the basis of said complaint FIR dated 17.5.1997 was registered at Police Station Kasauli, under Sections 342, 376 read with Section 34, I.P.C., against the accused persons. Necessary investigation was carried out. Prosecutrix was got medically examined through Dr. Maya Ahuja (PW-4), who issued MLC (Ext.PW-4/B). Accused persons were also got medically examined through Dr.H.C.Gupta (PW-6) who also issued MLCs (Ext.PW-6/A, Ext.PW-6/B and Ext.PW-6/C). 4. With the completion of investigation, challan was presented in the Court for trial and accused were charged for having committed an offence punishable under Sections 376, 342 read with Section 34, IPC, to which they did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined 14 witnesses. Statement of accused under Section 313, Cr.P.C. was also recorded. 6. The offence is alleged to have taken place on 11.5.1997, i.e. six days prior to the date on which the matter was reported to the police. According to PW-8, Superintendent 5 of Police had directed him to inquire into the case of a rape which had taken place at Garkhal. He made inquires and recorded the statement of prosecutrix under Section 154, Cr.P.C. On inquiry he found that on the date of the incident a rupat had been entered against the accused at Police Post, Garkhal, as such, the accused persons were apprehended under suspicious circumstances. Also departmental action had been taken against the Head Constable, Incharge, Police Post, Garkhal, SHO, Kasauli and ASI Kasauli. According to him, inquiry report had also been handed over to the Investigating Officer. 7. In this case, investigation was carried out by Shri Bhagat Singh (PW-9) and Shri Ram (PW-14). None of these witnesses has made reference about the said report. In fact PW-14 has categorically deposed that prior to the registration of FIR no report was pending with Police Station, Kasauli and that Dy. S.P. had not given any inquiry report to him. Superintendent of Police has also not been examined in this case. Prosecution has not produced the disciplinary action allegedly taken against the delinquent police officials or the alleged rupat lodged with the Police Post, Garkhal. 8. Further PW-8 was not aware who had been raped. According to him he made inquiries from local people and consulted Rojnamcha at Police Post, Garkhal and Police Station Kasauli and then reached upto the prosecutrix. Importantly, 6 none of these persons have been associated during investigation or examined in Court. This renders the prosecution version to be extremely doubtful. There has been delay in registration of F.I.R. The same is unexplainable and fatal. 9. The age of the prosecutrix is not in dispute. She is a married lady having two children. 10. It is a settled position of law that version of prosecutrix alone is sufficient to convict the accused provided the same inspires confidence. In our considered view, her statement does not inspire confidence. In Court it is her version that in the room at Garkhal she was raped twice by accused Raju and accused Prem Singh within a short span of 10 to 15 minutes. As per the opinion of Dr.H.C.Gupta (PW-6) it is not possible for a person to forcibly commit sexual intercourse twice within a gap of 15 minutes. 11. Further according to the prosecutrix, the matter was not reported to the police as she had wanted to save her honour and had not want her husband to know about the incident. Now this version is obviously false for the reason that her husband had already come to know about the incident as admittedly the following morning he had reached Police Station, Kasauli. It is her version that accused persons Manohar, Randip Singh and Rajesh Kumar (Raju) forcibly took her in a Van and after driving for a short distance raped her 7 one by one. Thereafter she was taken to a room in Garkhal where again she was raped twice by two persons. In her cross-examination she admits that there is a bazaar in Garkhal where the vehicle had stopped. Even PW-9 admits that there are many houses near the house of accused Prem Singh. The house where accused Prem Singh resides is triple storyed and is occupied. She could have easily raised hue and cry. She admits that while the accused persons were raping, her hands and legs were free. Her neck was scratched with nails and blood started oozing from the injury suffered by her. Medical record does not support this version of the prosecutrix. 12. While deposing in Court, PW-1 has made several improvements and contradictions from her statement Ext.PW- 1/A with which she was confronted with in the Court. In Court, she deposed that she and her husband had desired to go to Garkhal but when confronted with her earlier statement she admits it not to be so recorded there. She further admits that she did not state it to the police that her husband and Bhagat Singh had bought a bottle of liquor at Dharampur which was consumed on way to Garkhal. That apart, in Court she has categorically deposed that the accused persons threatened her with a knife and forcibly took her away in the Van. Under the threat of knife she was also taken to the house at Garkhal. All along she was threatened and therefore when the accused persons forcibly committed sexual 8 intercourse with her she did not raise any hue and cry. Now there is no reference of knife in her statement (Ext.PW-1/A). When confronted with her earlier statement, she also denies having prepared and eaten meals in the room where she was raped by the two accused persons. In Court she contradicts her earlier statement that her sister had received any money from the S.H.O. There is absolute falsehood in her statement. 13. Similarly, version of her husband Shri Jeet Ram (PW-2) is extremely unbelievable. According to him, when the accused persons asked him and his wife to alight from the vehicle, accused Manohar and Randhir Singh started giving him beatings and he fell down and became unconscious. He gained consciousness at about 10 -11 p.m. and thereafter went to his house at Koti. Now according to PW-1 her husband was fully conscious. This contradiction apart, PW-2 admits that Police Station Dharampur falls on way to his house. The accused had beaten him up and forcibly taken away his wife yet he did not report the matter to the police and straightway went to his house. This is not the normal conduct of a human being. Even this witness has made improvements from his statement recorded under Section 161, Cr.P.C. 14. Shri Bhagat Singh with whom PW-1 and PW-2 had gone to Dharmapur and Garkhal has not been examined by the prosecution or associated during Investigation. 9 15. Shri Mohinder Dutt (PW-3) is the owner of the house where prosecutrix was allegedly raped by accused Prem Singh and Rakesh Kumar alias Raju. Now this witness has not supported the prosecution case at all. He was declared hostile. He was extensively cross-examined and nothing material has come out from his statement. 16. The accused have 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 persons 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. (Deepak Gupta) Judge. (Sanjay Karol), August 20,2010 Judge. (C)