IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 731 of 1996 Date of decision: 25.5.2010 State of Himachal Pradesh Appellant Versus Ravinder Singh and another Respondents Coram The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice V.K. Ahuja, Judge Whether approved for reporting?1 For the Appellant: Mr. Anil Jaswal, Deputy Advocate General For the Respondents: Mr. N.S. Chandel, Advocate R.B. Misra, J. (Oral) The present appeal has arisen against the judgment, dated 17.4.1996, passed by the learned Additional Sessions Judge (I), Kangra at Dharamsala in Sessions Trial No. 13 of 1995 under Sections 366/34, 376 of the Indian Penal Code. 2. The prosecution story in brief is that victim Nirmala (PW-3), when reached on the road side on 17.3.1994 at about 7.45 p.m., a Van bearing registration 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 No. DNJ-4471 coming from Nurpur side, intended to go towards Jawali, stopped near PW-3 Nirmala and she was dragged in the said Van. Despite her raising alarm, no help was obtained as window panes were closed. Taking of victim in the said van was observed by PW 4 Ashok and PW-7 Suresh Kumar, present on the road side. The victim was taken towards light-house near Nagrota Surian, where she was sexually assaulted and thereafter she was left. PWs 4 and 5 Ashok and Suresh Kumar met the father of the victim, namely Harbans and told him about the incident, who with the help of other co-villagers started searching his daughter. At about 12.00 in the night Harbans Lal reported the matter to police and FIR Ex. PW-5/A was registered. The police alongwith PW-5 also started searching the victim and the said vehicle was nabbed at Maira Railway crossing, where both the accused were found sitting in the said vehicle bearing No. DNJ-4471, the people gathered there started beating them. The shirt, pant, vest and under-wear of accused Ravinder were taken into possession. Clothes (Salwar and shirt), Ex. P-1 and Ex. P-2 of the prosecutrix were also taken into possession. The extract of register Ex. PW-10/A and extract of admission register of the victim 3 Ex. PW-9/A were also taken into possession and the statement of the prosecutrix was recorded by the police on 2.6.1994. The clothes of Nirmala were sent to Chemical Examiner, Shimla for examination, where human blood on the shirt, pant, vest and semen was found on the underwear of the accused. After investigation, both the accused were charged for the offence under Sections 366, 376 read with Section 34 of the Indian Penal Code. 3. In order to prove its case, the prosecution has examined as many as 18 witnesses, whereas the accused had simply denied the prosecution case, showing their innocence. 4. PW-1 Dr. Sushma Sharma, attended upon the victim Nirmala. PW-2 Dr. B.B. Sharma, conducted the ossification test of Nirmala. PW-4 Ashok Kumar and PW-7 Suresh Kumar were the alleged eye witnesses who were present when the victim was abducted. PW-5 Harbans is the father of victim. PW-6 Rai Singh has proved that Maruti vehicle was nabbed near Maira Railway crossing. PW-8 Ravinder Kumar went in search of the victim. PW-9 Bakshish Singh, PW-10 Rai Singh, PW-13 H.C. Manohar Lal and PW-14 LHC Aminn Chand 4 are formal witnesses. PW-11 doctor Raman has attended upon both the accused and had issued MLRs. PW-12 Brahmi Devi is the “Bua” (father’s sister of the victim) of the victim. PW-15 is Subhachh, the owner of vehicle, allegedly used by accused persons. PW-16 S.I. Tara Chand, PW-17 Inspector Gulab Singh and PW-18 ASI Lajam Singh are the Investigating Officers. 5. On examination of prosecution witnesses and medical report and the material on record, we notice that PW-1, Dr. Mrs. Sushma Sharma, PHC, Jawali when examined the prosecutrix on 18.3.1994, the prosecutrix was talking irrelevantly and no mark of injury was seen anywhere on her body, especially forehead, wrist, face, breasts, chest, lower part of abdomen, inner aspects of thigh and back. Slight bleeding was noticed on the internal examination. No stains on the clothes were noticed. However, Salwar and Kamiz, preserved and sent for chemical analysis alongwith vaginal smear and pubic hair. On opening of parcel a shirt Ex. P-1 and Salwar Ex. P-2 were taken out. PW-1 gave an opinion Ex. PW-1/B, according to which sexual intercourse was done with the victim. 5 6. PW-2 Dr. B.B. Sharma, Radiologist on 19.3.1994 had done ossification test and has opined that the age of the prosecutrix was more than 20 years. Such report is Ex. PW-2/B. 7. PW-3Nirmala, the prosecutrix, stated that on 187.3.1994 at about 7.30 p.m when she was standing on the road side, which leads from Jassur to Jawali, one Van of white colour from Jassur side came and had stopped nearby her and she did not know its registration number. One of the accused was driving the said van and the other was sitting in the van. Accused, who was sitting on the back seat, caught her and forced her to sit in the van. She raised alarm, but the accused closed the door of the van. The said van stopped near light-house, Nagrota Surian. She was raped by both the accused and thereafter she was dropped and then the van proceeded towards Nagrota Surian side. 8. PW-3 further stated that her parents alongwith relations and police came at night and took her to Jawali, firstly to police station and thereafter she was medically examined. Her clothes and wearing were taken into possession by the doctor vide Ex. P-1 and Ex. P-2. X-ray was conducted and because of this occurrence, she felt ill 6 because of mental strain. She remained ill for two three months. She has passed matriculation from the Sidhpur Ghar School. 9. In cross examination, PW-3 stated that both the accused forced her to sit inside the van. In cross examination, PW-3 has categorically stated that she could not identify the culprits, who had committed the alleged rape upon her as she has not seen both the accused before the occurrence. In cross examination, she has also stated that she had seen both the accused first time in the court. According to cross examination, at about 12 night on 17.3.1994, she met police and her father etc. at Gaj Khud, from where she had been recovered. According to her statement in cross examination, bleeding had occurred during the sexual intercourse. 10. From the statement of PW-3, it appears that she could not recognize both the accused, therefore, it could be inferred that though she raised alarm while she was being taken in the van, but she had not indicated that she had resisted the accused or quarreled with or fought with the accused. Nothing is emanating from the testimony of PW-3 Nirmala that while sexual intercourse was being done, she resisted the accused, as no injury marks of any 7 kind were noticed as per her own testimony as well as from the testimony of PW-1 Dr. Sushma Sharma. 11. PW-4 Ashok Kumar is said to be the eye witness. He stated that on 17.3.1994 at about 7.45 p.m. when he was loitering on the road, a Van bearing No. DNJ-4471 was on the way from Jassur to Jawali. One person was driving the van and the other was sitting on the back side. The van stopped near PW-3 and lifted PW- 3 Nirmala. PW-3 Nirmala raised alarm and PW-4 also cried and tried to follow the van. PW-4 further stated that he was accompanied by one Suresh, who was also at some distance. The father of PW-3 Nirmala met PW-4 on the way, who was informed by PW-4 about the alleged incidence and other co-villagers also went in search of PW-3 Nirmala. In cross examination, PW-4 Ashok Kumar stated that he saw PW-3 being lifted and in the van from a distance of 50 meters from behind the Van. However, the house of the father of the victim is at a distance of 250- 300 meters from where PW-3 Nirmala was abducted. 12. According to the cross examination of PW-4 Ashok Kumar, his statement was recorded by SI Tara Chand on 18.3.1994 at about 3-4.0 p.m at the place of 8 occurrence and Suresh Kumar, at the relevant time, was at a distance of about 300-40 meters. 13. According to PW-4 he read the registration number of the Van from backside, which was in motion at that time and the culprit had put PW-3 in the Van. 14. As stated by PW-7, PW-3 is his niece. PW-7 stated that on 17.3.1994 at about 7.45 p.m. he had gone to fields for personal work, where he noticed one Maruti Car bearing registration No. DNJ-4471 coming from Jassur side on its way to Jawali and PW-3 Nirmala was standing by the road side. The said car stopped near the road side. One person was driving the vehicle and the other was sitting on the back side. Thereafter the accused dragged PW-3 Nirmala and made PW-3 sit in the alleged car. PW-3 raised alarm. PW-7 ha stated that he followed the Van alongwith PW-4, but in the meantime the said vehicle left for Jawali. According to PW-7, they were five- seven persons in toto and they started searching PW-3. According to this witness he could not identify the persons who were sitting in the said Van, as the persons sitting in the Van were seen from the back side. According to PW- 7, PW-3 lost her mental equilibrium after this occurrence and she remained mental for about 5-6 months. 9 15. As per statement of PW-7 in his cross examination, PW-5, father of the victim, is his real brother. In cross examination, PW-7 has stated that he was at a distance of 15/20 yards when PW-3 was made to sit in the said car and at that time, PW-4 was little behind him. As per testimony of PW-7, PW-5 met him at a distance of 2/3 furlongs from the spot and PW-3 was found in the power house near Nagrota Surian. PW-3 was sitting in the room where Chowkidar was present and thereafter she was taken to police station within half an hour. There was no street-light near the spot scene nor there was any other type of light on the spot of abduction. PW-7 further states that he read the number of the Van from the back- side from a distance of 5-10 yards and at that time the vehicle was about to start. 16. From the testimonies of PW-4 Ashok Kumar and PW-7 Suresh Kumar, it appears that they claimed that they have seen the occurrence, when the prosecutrix was being taken into Van and it was about 7.45 p.m. on 17.3.1994. Undisputedly, it was dark and as per PW-7, there was no light at the place of occurrence. As per PW- 4, he observed lifting of PW-3 in the Van from a distance of 50 meters from behind the van. As per statement of 10 PW-4 in his cross examination, Suresh Kumar (PW-7) was at a distance of 300-400 meters at the relevant time. As per statement of PW-4, in cross examination, he read the registration number of the Van from the backside while the said van was in motion. 17. It could be gathered from the statement of PW-4 in his cross examination that he could not recognize the accused on the basis of the observance having been made on 17.3.1994 at 7.45 p.m. It is also their stand that when PW-4 was at a distance of 300-400 meters from PW-7 and from a distance of 50 meters in dark night in absence of any light how he could see a number of registration of a moving van. Even 50 meters is a distance from where one ordinary person cannot observe in darkness the exact number of van. From the testimony of PW-7, it appears that he has seen the Van from 15-20 yards. This is quite contradictory from the testimony of PW-4. In his cross examination, PW-4 has categorically stated that at the relevant time Suresh Kumar was at a distance of 300-400 meters. From the statement of PW-7 also, it reveals that he had not seen the van on 17.3.1994 at about 7.15 p.m. He could not recognize both the accused as he is stated to have seen the Van from 11 the backside and as per testimony of PW-7, PW-3 remained in mental imbalance for about 5-6 months. 18. PW-5, Harbans Lal, father of the prosecutrix, has stated that hs daughter was born in 1971 and was a student of BA Part-I at the relevant time and in March, 1994 at about 7.30 p.m. he had gone to flour mill at Bharmar. On way back, PW-4 and Suresh Kumar met him and told him that PW-3 Nirmala has been abducted in a Van towards Jawali, whereas PW-7, in his testimony has said that PW-5 met him at a distance of 2-3 furlongs when he was searching PW-3 Nirmala with PW-4. 19. As per testimony of PW-5, he alongwith 100/200 persons of the village went in search of PW-3, but they failed to trace her. Then he approached the police of Jawali at 12 night and reported the matter to police vide Ex. PW-5/A. The van, which was coming from Jawali side, was seen near Maira Railway crossing and the same was caught, wherein both the accused were found sitting. According to PW-5, PW-3 met him while loitering/roaming on the roadside and at that time the police was with him alongwith 40-50 other persons. According to PW-5, medicines were administered to PW- 3 for 8 months after the alleged occurrence. 12 20. From the testimony of PW-5, it appears that 100/200 persons of the village alongwith PW-05 had started searching PW-3 and PW-3 was found near a road roaming on roadside, whereas PW-7 has stated in his cross examination that PW-3 was found in power-house near Nagrota Surian when she was sitting in the power house in a room, with Chowkidar. The testimony of PW-5 and recovery of PW-3 is also leaving contradictory version. 21. PW-6, Rai Singh had only supported the prosecution version in the sense that on hearing that a Van has been intercepted by the public near Maira Railway crossing. He reached there and found a Maruti Car bearing No. DNJ-4471. As per PW-6, PW-3 Nirmala remained ill for 2/3 months after the occurrence. When he went on scooter to Maira Railway crossing, at that time Nirmala PW-3 was sitting in the Electricity Sub Station Office and PW-3 was recovered at 3.00 a.m. and proceedings of recovery of PW-3 were drawn at the spot, while sitting on the ground. Time and place of recovery of PW-3 in view of the testimony of PW-6 also becomes doubtful. As per testimony of PW-7, PW-3 was recovered in the power house room where Chowkidar was present, 13 whereas PW-5 has indicated that PW-3 was recovered from roadside near Gajkut. 22. PW-8 Ravinder Kumar has endavoured to support the prosecution version and stated that he alongwith Ramesh Kumar went in search of PW-3 towards Jawali on scooter on 17.3.1994 at about 8.30 p.m. As per PW-8, PW-3 used to remain ill and because of this, he inquired from the owner of the other cars about her. According to him, he reached at about 9.00 a.m. on 17.3.1994 to Maira Railway crossing, when 50-60 persons were present there. It was pitch dark and so he could not identify the persons, who gathered there. However, he noticed the presence of PW-6. At that time he noticed a car coming from Nagrota Surian side, wherein two persons were sitting and people became rash and gave beatings to the persons sitting in the car, who denied that they have ever abducted any girl. 23. From the testimony of PW-8 Ravinder Kumar, nothing has become about the recovery of PW-3, Nirmala. 24. PW-9 B Bakshish Singh has justified Ex. PW-9/A being headmaster of Government High School, Sidhpur Ghar. 14 25. PW-10 Rai Singh is said to have issued Ex. PW- 10/A, being the Secretary of Gram Panchayat Sidhpurghar. 26. PW-11 Dr. Raman Kumar is said to have examined respondent No. 2 Jagdish Raj at 10.00 a.m. on 18.3.1994, who was brought by Constable Rajinder Kumar and who after examination indicated that clothes of Jagdish Raj were not torn and there was no injury marks(abrasions or scratches) over hands genital parts and chest. There was abrasion 0.5 cmx2 cm x 0.5 cm above right eye brow. There was dried blood on the wound. There was sub-conjunctival hemorrhage in the left eye. There was no stain (blood or semen) on the clothes and hair(pubic). He was capable of performing sexual act. Genital organs were well developed. Public and axillary hair were present on the body. Pubic hair were not matted. Injuries were simple in nature caused with blunt weapon within 24 hours. 27. From the testimony of PW-11, it appears that such injuries and scratches were noticed on the body and stained found on the clothes and it goes without saying that such marks and spots could have been caused by 15 beating the accused by the public, when they were found in the night of 17.3.1994 in the Van. 28. PW-12 Brahmi Devi has stated that PW-3 is her niece (brother’s daughter) and as per her statement, mental condition of PW-3 was normal before the occurrence and when she reached hospital, PW-3 was under fear. She also visited on 2.6.1994 and at that time, mental condition of PW-3 was alright. However, PW-3, being prosecution witness, has not indicated the normal condition of the prosecutrix, which is in contradiction of other prosecution witnesses, whre they have said, including PW-16 Tara Chand, (Inspector), who has investigated this case. 29. PWs 13, 14 and 15 are formal witnesses and their testimonies are not very material. 30. PW-16 is Inspector Tara Chand, who investigated this case. He stated that on 19.3.1994 one Harbans Lal came to the police station at 12.30 a.m.(night), who made a statement that her daughter had been kidnapped by the persons in a car bearing registration No. DNJ-4471. Statement of Harbans Lal was recorded vide Ex. PW-5/A, which was read over and explained to him which Harbans Lal admitted to be 16 correct. Accordingly, a search was made and at about 1.30 a.m. PW-16 reached Guglara and there he made a provision for naka-bandi on Guglara-Jawali road and when victim could not be traced after one a half hour, they came back. While returning back, he noticed near Maira railway crossing that a car bearing No. DNJ-4471 was parked there and people had gathered around it and the people had attacked both the accused and beaten the persons sitting in the Van. PW-16 took the alleged car to police station. After this, the victim was found near Gaj bridge, which is towards Nagrota Surian. At that time Karam Singh, Rai Singh, Harbans Lal were accompanying him and victim was identified by Karam Singh as well as by the father of prosecutrix. The statement of victim could not be recorded as she was mentally disturbed. According to cross examination of PW-16, Guglara was about 5-6 k.m. from P.S. Jawali and he reached the Maira railway crossing at about 3.30 a.m. Nirmala PW-3 was recovered from the road-side of the alleged bridge. She was roaming about on the road-side and PW-16 recovered the victim at 5.00 a.m. on 18.3.1994. PW-16 has, however, in his cross examination, stated that it is incorrect that victim was 17 recovered from a room of Power House, in which a chowkidar and some other employees were there. The testimony of PW-16 regarding recovery of PW-3 is in derogation to the statement made by PWs 4, 5 and 7. 31. From the testimony of PW-16, nothing has been noticed to know as to how long mental condition of PW-3 was abnormal and where she was getting treatment and how and when the endeavour was made on the part of PW-16 to assess the mental condition of PW-3 to record her statement. Therefore, recording of statement on 2.6.1994, after a long time of about two and half months from the date of incident, creates a doubt about the manner of occurrence of incident. 32. PW-17, Gulab Singh, in his testimony, has stated that on 2.6.1994 when he recorded the statement of victim Nirmala Devi and PW-12 Brahmi Devi at their houses, at that time mental condition of PW-3 Nirmala was sound, whereas as per police zimni, mental condition of victim was not perfect, so her statement was recorded later on. 33. PW-18 Lajam Singh, ASI, has obtained age certificates Ex. PW-10/A and Ex. PW-10/B. 18 34. From the testimony of prosecution witnesses, we have noticed that the prosecution witnesses, PWs 4 and 7, are said to have seen the occurrence, have given contradictory version and they are said to be located far away from each other and from van, as such they could not have noticed the registration number of the van, specifically in dark night. 35. Recovery of PW-3 has also become doubtful as PW-5 being father of the victim, has given different version. PW-7 is said to be present on the spot, who has also indicated that the prosecutrix was recovered from the power house, where as PW-16 has stated that PW-3 was recovered from the road side. PW-3 herself has stated that she was roaming on the road side. From the testimony of prosecutrix-PW-3, she could not recognize the accused and large number of persons. Her father, relatives and police personnel came to recover her. The extent of the injuries and the condition of the clothes do not inspire confidence that she had ever resisted when she was being lifted in the van and she was being sexually assaulted. The prosecution witness and the contradictions have not inspired confidence and are not trustworthy. 19 36. For the apparent contradictions, it may be noticed that the prosecution as failed to prove its case beyond reasonable doubt and the learned Additional Sessions Judge has rightly acquitted the accused from the alleged offences and the findings of the learned Additional Sessions Judge do not call for any interference. 37. In view of the above discussion, we do not find any merit in this appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged forthwith. ( R.B. Misra ), J. May 25, 2010(K) ( V.K. Ahuja ), J.