IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 576 of 2001. Date of Decision : May 5, 2011 State of Himachal Pradesh Appellant Versus Mehaboob Ali and others Respondents Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl. A.G. For the respondents : Mr. Abhishek Sood, Advocate, vice Mr. Rama Kant Sharma, Advocate. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 27th/28th July, 1998 the accused were put to trial. In terms of judgment dated 19.6.2001, passed by the learned Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 16-ST/7 of 2000/1999, titled as State of Himachal Pradesh versus Mehaboob Ali and others, all the accused stand acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that on 28.7.1998 Mehaboob Ali (Accused No. 1) asked the prosecutrix (PW-4) to contact marriage with him to which she refused. In the night intervening 27th/28th, July, 1998 at about 3.00 a.m. he went to the house of the prosecutrix, found her sleeping in the courtyard, woke her up and asked her to accompany him. Prosecutrix accompanied him up to a point where a scooter was parked and a man was standing. Thereafter all three of them went on the scooter to a point where maruti van bearing No. HP-17-5549 was parked. There accused Mehaboob Ali forcibly pushed the prosecutrix into the van and the driver started driving the vehicle towards Kulhal forest. On the way, vehicle was stopped near the jungle, prosecutrix taken into the jungle by “two persons” and forcibly subjected to sexual intercourse without her wishes. Before doing so, they broke the string of her salwar and gagged her mouth. Thereafter the remaining persons subjected her to rape, turn by turn. She became unconscious. In the morning she was taken in the van up to the Markanda Bridge. Whole day she was made to roam at different places in the company of “three persons”. Sometime during the evening she was again taken back in the van to the same place where she had been raped earlier, where again she was subjected to forcible sexual intercourse by all the “six persons” present earlier, including accused Mehaboob Ali. The persons who subjected her to rape are the accused persons. Later on prosecutrix was made to alight from the van at “Do-sarka” from where she walked to the 3 place of her relatives and narrated the whole incident to her mother, Sahida and Sitara. 3. The matter was reported to the police and F.I.R. No. 328/98 (Ext. PA), dated 30.7.1998, under Sections 363, 366, 376 (2)(g) of the Indian Penal Code was registered at police station Paonta Sahib. Sub-Inspector Prem Dass (PW-15) commenced investigation. He recorded another statement of the prosecutrix (Ext. PB). The accused were apprehended. Prosecutrix and the accused were got medically examined. Dr. Sahida Ali (PW-7) and Dr. Ranjana Oberoi (PW-8) medically examined the prosecutrix and gave opinion as per MLC (Ext. PJ and PL). Clothes belonging to the accused and the prosecutrix were recovered and sealed by the police and sent for chemical examination to the forensic science laboratory. Reports of the chemical examiner (Ext. PZ and PZ/1) were obtained by the police. With the completion of investigation challan was presented in the Court for trial. 4. All the accused were charged for having committed offences punishable under Sections 363, 366, 376 (2)(g) of the Indian Penal Code to which they did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined fifteen witnesses and the statements of the accused under Section 313 Cr. P.C. were also recorded. 6. The court below acquitted all the accused of the charged offences for the reason that the version of the prosecutrix, 4 apart from being contradictory did not inspire confidence. Also medical record did not support the prosecution case. 7. We have heard learned counsel for the parties and have perused the record. 8. Out of fifteen witnesses, testimonies of Constable Jakir Rehman (PW-1), Constable Kamal Kant (PW-2), Constable Ram Kumar (PW-3), L/Constable Mathura Devi (PW-11), HC-Dharam Vir (PW-12), HC-Ramesh Kumar (PW-13) and ASI Dabey Ram (PW-14) are of formal nature. They are police officials. They prove the factum of registration of F.I.R. and recovery of parcels seized and sent for chemical analysis. Sub-Inspector Prem Dass (PW-15) is the Investigating Officer whose statement we shall discuss later. 9. Prosecutrix (PW-4), Smt. Jareena Begum (PW-5), Sh. Sabar Deen (PW-6), Sh. Sanjeev Kumar (PW-9) and Sh. Yameen (PW-10) are the independent prosecution witnesses. 10. PW-9 and PW-10 witnesses to the recovery of the seized articles have turned hostile and inspite of their cross examination nothing fruitful has come out from their testimonies. They have no reason to depose falsely. In fact according to PW-10 the defence taken by the accused Mehaboob Ali stands corroborated. According to him, the boy in the photograph (Ext. DA) and the prosecutrix were working at the same place, which fact also stands admitted by the prosecutrix. According to the accused, prosecutrix was having illicit relationship with this boy and the 5 accused have been falsely implicated due to pending litigation inter se between the parties. 11. There is no dispute with regard to the age of the prosecutrix. It is not the case of prosecution that the prosecutrix was below eighteen years of age. 12. Before we deal with the statement of the prosecutrix and other relevant witnesses we shall first deal with the statements of the Doctors (PW-7 and PW-8) according to whom, after examining the prosecutrix they found no injury marks on the external genitalia. Labia was well developed and hymen was torn with a wide opening. There were only minor abrasions on the breast of the prosecutrix. Both of them have opined that the prosecutrix was habitual to sexual intercourse. Prosecutrix is not a married woman. It is a case of alleged gang rape on different occasions and in open jungle. No signs of resistance/struggle are found on the body. Medical evidence does not support the prosecution case but that fact by itself could not be a ground to acquit the accused. 13. Admittedly Smt. Jareena Begum (PW-5), mother and Sh. Sabar Deen (PW-6), brother-in-law of the prosecutrix, have not witnessed the occurrence of the incidence. Sh. Sabar Deen is a witness to the recovery of cigarette buts and bottles of wine found at the spot where the alleged incident took place. It is not the case of the prosecution that the accused had consumed alcohol or that the prosecutrix was raped under the influence of alcohol. Consequently his testimony is not of much help to the prosecution. 6 14. Smt. Jareena Begum (PW-5) has supported the version of the prosecution. However, we find that there is contradiction in her statement. She states that the prosecutrix told her that “three – four” persons had committed rape whereas according to the prosecutrix there were six persons. That apart, statement of this witness also does not inspire confidence for the simple reason that she does not state as to what steps she had taken to report the matter to the police or inquire the welfare of her child who had been missing for more than three days. It is rather an un-natural conduct of the mother. It appears that complete truth has not been revealed by her. 15. Coming to the statement of the prosecutrix, we find that she specifically does not name all the persons who had subjected her to forcible intercourse. She specifically names only two persons i.e. Mehaboob Ali and Haneef. Her testimony otherwise does not inspire confidence. Significantly it is her admitted case that of her own she had accompanied accused Mehaboob Ali after she was woken by him. This was at 3.00 a.m. while prosecutrix was sleeping in the courtyard of her house. She admits that her father and other members were also sleeping in the house at that time. Had she wanted she could have conveniently raised an alarm which she did not. It is not her case that she was forcibly dragged or under any threat, coercion or inducement taken away by Mehaboob Ali from her house. That apart, she herself sat on the scooter to be taken to the place where the van was parked. Even at this point she 7 did not resist the acts of accused Mehaboob Ali. According to her, four persons were already sitting in the van. In Court she names them to be Shaukat Ali, Jai Pal Singh, Haneef and Jahid Ali. She admits that none of them were known to her from before. She does not name the fifth person. Admittedly no test identification parade was got done by the police. In her deposition she only states that only accused persons were shown to her and no other person was got identified. This is no identification parade in law. In her statement she categorically states that except for accused Mehaboob and Haneef she did not know any of the accused persons from before. She categorically states that she could not identify the person who had driven the scooter. She also does not give the identity or describe the physical features of the persons who had raped her. 16. According to her she was subjected to sexual intercourse twice by all the six persons. Now medical record does not corroborate this version. Prosecution wants us to believe that a person was gang raped not once but twice at different times and yet no injury marks were found on her body. According to the prosecutrix she never had intercourse prior to the incident which version of hers stands materially controverted by medical evidence on record. 17. Further this witness admits that the vehicle had to pass through check posts set up by the Government for collection of tax at two different places. She also admits that the vehicle passed 8 through densely populated area and yet she did not raise any alarm. Except for her bald statement that while she was taken in the van her hands were tied and mouth gagged, there is nothing on record to show that she was otherwise threatened, coerced or intimidated by the accused persons. She was taken from one place to another for more than 36 hours. She was taken from place to place both in the van and on foot. She could have conveniently raised an alarm. Also she could have conveniently slipped away into the crowd. She was confronted with her statements Ext. PA and Ext. PB recorded by the police. We find that she has not only made improvements but has contradicted her earlier statement. Her version that her hands were tied and her mouth gagged does not find mention in her earlier statement. In her statement (Ext. PB) she has categorically deposed that she had left the house of her parents with her belongings in a suitcase. Perhaps the intention was to leave the parental house with intention to get married. We further find that the police has recorded two statements of the prosecutrix Ext. PA and Ext. PB both on the same date. Why so? has not come on record. Prosecutrix herself does not name all persons who had subjected her to forcible sexual intercourse. As per the version of PW-15 the father of the prosecutrix had given her beatings before the statements were recorded. This perhaps explains false implication. 18. We thus find that the version of the prosecutrix does not inspire confidence apart from the fact that prosecution has not 9 been able to prove the guilt of the accused beyond reasonable doubt. 19. 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 versus 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. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. May 5, 2011 (PK)