IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 502 of 2000 Decided on: 1.12.2010 State of H.P. ..…Appellant Versus Dalip Singh. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1No. For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For the respondent : None. Sanjay Karol,J. (Oral) For an offence, which is alleged to have been committed on 13/14.3.1996, accused was put to trial. In terms of judgment dated 29.4.2000, passed by learned Sessions Judge, Kinnaur Session Division at Rampur Bushahr, H.P., in Sessions Trial No. 04 of 1999, titled as State of H.P. Vs. Dalip Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Smt. Sanam Jangmo (PW-1) was married to Gian Chand (not examined). Out 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 of the wedlock five children were born. Prosecutrix (PW-2) was the fourth child. The first one Bijlo Devi was 22 years, second child Karam Dass was 21 years and third child Bhagwan Singh was 20 years of age. As on the date of the alleged offence prosecutrix was 15 years of age. Gian Chand who was working as Goldsmith, used to remain away from home most of the time. During summer, Sanam Jangmo along with her children used to reside at Kalpa and during winters shift to a place known as Badhal. Prior to 12th of February, 1996, in connection with his work Gian Chand left for Nathpa. Sanam Jangmo along with her children also went to reside at her brother’s house in Badhal. On 29th of February, 1996 Gian Chand sent Ugar Sain (not examined) to bring the prosecutrix from Badhal to Nathpa. At Nathpa prosecutrix developed intimacy with the accused. Both the prosecutrix and the accused would meet often and accused pressed her to marry him. On 13th of March, 1996 accused took the prosecutrix out of the house on the pretext of showing her the Hydro Electric Power at Nathpa. Instead of taking her to Nathpa, he took her to the house of his sister at Sungra where he pronounced that both of them were getting married. On 12th and 13th of March, 1996 prosecutrix stayed with the accused in the house of his sister. On 14th of March, 1996 accused took the prosecutrix into the jungle known as Thonge. There accused took the prosecutrix inside the cave and asked her to untie the string of her salwar. Thereafter, accused forcibly committed sexual intercourse with her without her consent. She felt pain in her stomach and pelvic region. Accused threatened and terrorized the prosecutrix to yield to his 3 lust. After the incident, prosecutrix left the jungle and walked her way back to her house at Kalpa where on the same day she narrated the incident to her mother at about 6.00 P.M. Her mother reported the matter to the police and FIR No. 30 (Ext.PW1/A) dated 15.3.1996, under Sections 363/366-A/376 IPC was registered at Police Station, Bhavanagar. Police got the prosecutrix medically examined through Dr. Anita Negi (PW-8) on 15.3.1996, who issued MLR (Ext.PW8/A). Clothes of the prosecutrix i.e. salwar (Ext.P1), Kameez (Ext.P2) were taken by the police in the presence of the Doctor. Investigation revealed that prosecutrix was born on 15.2.1981 and her age as opined by the doctor was between 10 years to 14 years. Dr. Suman Gupta, Radiologist (PW-3) opined it in terms of medical report (Ext.PW3/J) based on X-ray films (Exts.PW3/A to PW3/H). Police collected birth certificate (Ext.PW5/A) from the Secretary, Gram Panchayat, Kalpa issued by Govind Singh (PW-5). Birth certificate (Ext.PW7/A) of the prosecutrix was also issued by Gopi Nand (PW-7). Another birth certificate (Ext.PW9/A) issued by Head Teacher of the Govt. Primary School, Kalpa, Shri Daljit Singh (PW-9) was also collected by the police. Accused was got medically examined through Dr. Lalit Kumar Mahajan (PW-4) who issued report (Ext.PW4/A). Personal belongings of the accused and the prosecutrix were sent for chemical analysis and FSL report (Ext.PW10/A) obtained. With the completion of investigation, challan was presented in the Court for trial. 4 3. The accused was charged for having committed an offence punishable under Sections 363,366-A and 376 IPC, to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined ten witnesses and the statement of 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. The relevant extract of the statement of the Doctor reads as under:- “On examination it was found that the prosecutrix was a young female of thin built, conscious, co-operative, well oriented to time, place and person. On general physical examination it was found that there was no sign of struggle or any injury on face. Breasts were well developed and no signs of injury were found. There was no sign of injury on the inner side of thighs. On local examination it was found that public hair were not grown, no injury on labia minora was found. Hymen was ruptured. There was no fresh bleeding from hymen. Per-vaginal examination-Vagina admitted one finger as the patient was keeping very tight because of pain. Bleeding was present from vagina. Per speculum examination was not done as the patient was not allowing. Per speculum examination was done on 18-3-1996. No injury was seen on vagina. Blood was coming from cervix. On examination there was nothing to suggest that fresh sexual intercourse had taken place. 5 I am not in a position to state whether presence of blood in the vagina of the prosecutrix as observed by me during her examination on 15-3-1996 could be owing to menstruation as perspeculum examination was not conducted by me on that day as the prosecutrix did not agree for the same. Since the hymen was already ruptured, it cannot be said that the prosecutrix was not virgin. Volunteered that rupture of hymen can also take place due to various other reasons, such as, on account of vigorous physical exercise etc.” (Emphasis supplied) 7. As per report (Ext.PW10/F) issued by the Forensic Science Examiner no semen was found on the vaginal smear slides as there was not enough blood for further examination. From the sample of nail scrapping, pubic hair and pant, no blood or semen was found. On the clothes of the prosecutrix i.e. salwar and shirt only human blood was found and no semen was present. On smear slides only blood was found. No semen was present. On the clothes of the accused only human blood was found. Now the report of FSL does not show that blood found on the exhibits was actually that of the accused or the prosecutrix. This evidence does not link the accused to the offence. 8. As per the opinion given by the Doctor, upon examination of the prosecutrix, which is evident from (Ext.PW8/A), there was nothing to suggest that fresh sexual intercourse had taken place. No injury marks were found on the body and private parts of the prosecutrix. 6 9. From the record, we find that neither the father nor the uncle (brother of Sanam Jangmo) of the prosecutrix have been examined in the Court. Even the sisters/other children have not been associated during investigation. It is the prosecution case that much prior to the alleged incident accused and prosecutrix had developed intimacy. From the record medical evidence does not establish that prosecutrix was subjected to sexual intercourse. Medical record also establishes one fact that no injury was found on the body of the prosecutrix. It is a settled position of law that even in the absence of corroboration of medical evidence, if the version of the prosecutrix otherwise inspires confidence, it can be relied upon for determining the guilt of the accused. To our mind, her statement does not inspire confidence. 10. In the instant case, we find that there is contradiction with regard to the exact time and place of the matter having reported to the police. According to the prosecutrix, at 6.00 P.M., on 14th of March, 1996 she narrated the incident to her mother in Kalpa. Same day her mother reported the matter to the Police at Peo (Reckong-Peo) and next day i.e. 15th of March, 1996 FIR was lodged at Police Station, Bhavanagar. Now, this version of hers stands materially contradicted by the investigating officer according to whom matter was reported to the police at Police Station, Bhavanagar on 15th of March, 1996 and FIR (Ext.PW1/A) was straightway recorded. Even according to the prosecutrix, written complaint was lodged with the police by her mother at the Reckong Peo. Now, this report has not been placed on record. Why has it been 7 concealed by the prosecution ? Importantly, this part of the statement of the prosecution goes un-rebutted. In the background that parties had developed some intimacy and the father and the Uncle of the girl has not been examined, it cannot be said that prosecution has come out with the true and correct version of what transpired at the spot and between the two parties. 11. According to the prosecutrix she stayed in the house of sister of the accused for two nights i.e. 12th and 13th of March, 1996. In spite of the accused proclaiming that they had got married he did not have sexual intercourse with the prosecutrix there. According to the prosecutrix it was only on 14th of March, 1996 that the accused after taking her to the jungle raped her. Now, this version of hers does not inspire confidence. She admits that place of occurrence was just about 40/50 metres from the road head. She admits that closely there were houses and shops yet she did not protest, raise any alarm or report the matter to anyone. She wants us to believe that after the alleged offence she walked back throughout the day to her house at Kalpa and then reported the matter to her mother. This is not true. Her mother in fact was not at Kalpa. She had come to live in the house of her brother at Badhal. Prosecutrix in fact admits that her mother resides at Reckong Peo in a rented accommodation and has settled down as wife of Shri Gurdayal Singh. Further, why did the prosecutrix not resist the advances of the accused. She could have easily done so. The accused who admittedly proclaimed to have got married to the prosecutrix could have had physical relationship with his wife in 8 the house of his sister. There was no need for him to have taken her to the jungle. 12. On the question of age of the prosecutrix, we also find that there are material contradictions on record. As per the report of the Doctor Suman Gupta, Radiologist (PW-3), the age of the prosecutrix at the time of her medical examination is between 10 to 14 years. We find the opinion of the expert not to be reliable and correct for the reason that x-ray films of the prosecutrix were found to be hazy and returned to the police. The police got fresh ski gram test conducted and place it before her for examination. However, she admits that neither x-ray examination was done by her nor was it done in her presence or under her direction. Prosecution has not been able to show that the x-rays on which she gave her opinion were actually that of the prosecutrix. That apart, we find that prosecutrix herself has deposed that as on the date of the alleged offence she was 15 years of age. This fact also stands proved from the testimony of her mother (PW-1). With regard to the birth certificates i.e. (Ext.PW5/A) produced on record by Govind Singh (PW-5), (Ext.PW7/A) issued by Gopi Nand (PW-7) and (Ext.PW9/A) issued by Daljit Singh (PW-9), we find there is contradiction. Date of birth of prosecutrix in certificates (Ext.PW5/A) and (Ext.PW9/A) is given as 15.2.1981, whereas in (Ext.PW7/A) and (Ext.PW10/D) the date of birth given as 10.5.1979. In any event, we feel that not much reliance can be placed thereupon for the reasons that the persons who made the relevant entries in the record were not examined. The person who got the entry recorded and the person who made the entries have neither 9 been identified nor examined in Court. The certificates cannot be said to be prepared on the basis of authentic record maintained by the authorities under the Births, Deaths and Marriages Registration Act or any other provisions of law. 13. Further, we find that as on the date of the alleged offence, mother of the prosecutrix was 35 years of age. She admits that her eldest daughter Bijlo Devi was married 10/12 years prior to the recording of her statement in Court i.e. on 13.9.1999. She also admits the prosecutrix to be her fourth child and the age difference between all of her children to be one/one and half years. No doubt, she states that Bijlo Devi was married prior to her attaining the age of 18 years, but, however, there is nothing on record to prove this fact. In law, Bijlo Devi is assumed to have been married only after attaining the lawful age. Hence, as on the date of the alleged offence Bijlo Devi must have been more than 24/25 years of age and the prosecutrix being the fourth child would be more than 16 years of age. Prosecution thus cannot be said to have proved that as on the date of the alleged offence prosecutrix was less than 16 years of age. 14. From the record it cannot be said that prosecution has been able to prove any of the essential ingredients in relations to the charged offence. 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 10 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. (R.B. Misra), Judge. December 1, 2010 (Sanjay Karol), Judge. (vs)