1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 247 of 2002 Decided on August 3, 2011 _____________________________________________________ State of H.P. …Appellant. Versus Noori alias Daljit Singh ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K.Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General For the respondent: Mr.Anoop Chitkara, Amicus Curiae. Justice Dev Darshan Sud,J. (oral) The presence of the respondent could not be procured despite the fact that bailable warrants were issued against the respondent, but he was not found at the given address. Mr.Anoop Chitkara, learned counsel is appointed as amicus curiae to assist this Court. 2. The state is aggrieved by the judgment passed by the learned Sessions Judge acquitting the respondent for having committed offence under Sections 376/511 of the IPC. The case against the respondent, herein, is that he is employed as helper with Electricity Department, NHPC. On 2 26.4.1999 report was lodged by Sh.Roshan Lal that he along with his wife Jamna Devi and son Deepak Kumar had gone to Nepal and had kept his two daughters Lachhmi aged 3 years and Shalo aged 6 years with his mother-in-law Hari Kalan in the quarter allotted to him in village Samleu. When he returned on 24.4.1999 at about 9.00 PM, both his daughters were sleeping. On 25.4.1999, complainant and his wife observed that their daughter Shalu was not feeling well and in the morning of 26.4.1999 the complainant had gone to attend his duties and his wife wanted to send Shalu to school but she was not moving / walking properly. When she enquired about the cause as to why she was in this state, the prosecutrix started weeping and told her that accused Noori had committed “bad acts” with her. The wife of the complainant immediately contacted the complainant and visited the Police Station. On the statement of the complainant, case under Section 376/511 IPC was registered. 3. It is undisputed before us that prosecutrix was aged about 6 years. The prosecutrix was examined by PW.12 Dr.Manju Mittal, whose opinion Ex.PK is on record. We advert to that later in the judgment. 4. The prosecution examined as many as 15 witnesses. Out of these, we would considering the evidence 3 of prosecutrix as PW.4, PW.1 Sh.Roshan Lal, father of the prosecutrix and PW.2 Smt.Jamna Devi, mother of the prosecutrix. What we find in the statement of PW.4 is that no oath has been administered to her by the learned Sessions Judge because she was ignorant about understanding the sanctity of an oath and its implication. In her cross-examination she admits that a police man who accompanied her to the Court as also her father told her what to state in the Court. This demolishes the entire case of the prosecution. Irrespective of this fact we have gone through the medical evidence. 5. PW.12 Dr.Manju Mittal, Senior Medical Officer, Civil Hospital, Dalhousie has examined the prosecutrix. She found there was no injury on the private parts of the prosecutrix except redness all around the anus about one inch out side the anus. Hymen was intact. There was no secretion or blood stain over / on the vagina. There was injury on the eye but the prosecutrix has disclosed that it was due to a fall. Duration of the injury was opined 48 hours. Though doctor did say that possibility of sexual intercourse cannot be ruled out, but there was no evidence of penetration. 6. We have also seen the medical examination (Ex.PD)of the accused. No injury was found on the penis 4 scrotum of the respondent. Ex.PM is the Chemical Examiner's report which does not show any signs of semen on the clothing and also on the bed sheet. 7. Learned Senior Additional Advocate General submits that the judgment is based his appreciation of the evidence and that the conclusion arrived at by the learned Court below does not have any substantive basis. 8. Learned Senior Additional Advocate General submits that the evidence of the prosecution coupled with that of the medical evidence, points out to the fact that prosecutrix has been sexually assaulted. We cannot accept this submission. 9. We would, at the very outset, express our anguish in the manner in which learned Sessions Judge has proceeded and examined the prosecutrix. She was a child witness and the questions put to her to ascertain her comprehension and capability should have been recorded along with answers given by her in order to enable the Court to know as to whether she understood the meaning of an oath or of what she was saying in the Court and the consequences of lying / speaking the truth. The evidence suggests that the prosecutrix kept on going to school for two days after the occurrence and she did not disclose/mention the occurrence to anybody including her 5 teacher immediately or thereafter. This is strange behaviour on the part of the person who was sexually assaulted. The prosecutrix admits that she was tutored to make the statement implicating the accused. So far as the statements of mother and father of the prosecutrix are concerned, all that we need say is these witnesses too reported the matter after two days. We do not find any merit in the present appeal, accordingly the same is dismissed. 10. Bail bonds furnished by the respondent are discharged. (R.B. Misra) Judge August 3, 2011 (Dev Darshan Sud) (Purohit) Judge