IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 179 of 1995 Reserved on: 06.04.2009 Date of decision: 10.04.2009 State of H.P. ... Appellant Versus Mangal Dass … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. For the respondent: Mr. K.R. Thakur, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of Ld. Additional Sessions Judge, Shimla, dated 24.6.1994, vide which the respondent was acquitted of the charge framed against him under Sections 376, 354 and 341 I.P.C. The prosecution story in brief is that on 14.6.1990 one ‘K’, name not mentioned, filed a written complaint before Incharge, Police Chowki, Anni. In the said complaint, the complainant had alleged that she was of the age of 15 and was studying in 6th 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 class in Senior Secondary School. On 11.6.1990, she was accompanied by her friend named ‘P’ who was studying in the 8th class in the same school and when they were coming back from the school, the respondent followed them. The respondent asked the complainant and her friend to be his guests and they refused, but he forcibly snatched the school bag of ’P’ and took the same to his house and thereafter, in the evening he left the same in the fields near her house. It was further alleged that on the second day when both the complainant and her friend were going to the school, the respondent came out of bushes and caught hold of them and stated that they will not go to school today. Her friend picked up the stone to give beatings to the respondent, who snatched the stone and proclaimed that in case they made noise, he will kill both of them with a knife. Thereafter, the respondent directed both of them to go towards a place and took them to a cave (Gufa) and proclaimed that in case they raised an alarm and attempted to leave the place, he will kill them. It was further alleged that the respondent kept on doing the indescent acts with them and when it became dark he stated that they cannot go back today. Thereafter, she told her friend that her bag was lying outside at some distance and when she went outside the cave, the respondent committed rape with her. The complainant’s friend came back and the respondent gave her tooth bites on her cheeks, pressed her breast and wanted to do forcible sexual act, but did not succeed and also attempted to tear her salwar. It was further alleged by the complainant that on the next day, the father of the complainant and her friend came in search of them and the respondent ran away on seeing them. She and her 3 friend wanted to commit suicide, but they were caught hold of by their fathers, who brought them back. It was also alleged that the respondent was working as a JBT teacher in some other school and was staying in the house since January. On this report, a case was registered and after investigation, the challan was filed in the Court of learned Sub Divisional Judicial Magistrate, Rampur Bushahr, who committed the case to the Court of learned Sessions Judge, who assigned the case to the learned trial Court, who tried the respondent as detailed above, leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. During the course of arguments, though the learned Deputy Advocate General had challenged the findings of the learned trial Court acquitting the respondent of the charge framed under Section 376 I.P.C., but the main arguments were confined to the acquittal of the respondent under Section 354 I.P.C. as well as under Section 341 I.P.C. by making submissions that there was sufficient evidence to prove this charge and, therefore, the findings of the learned trial Court to the contrary are liable to be reversed. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein supplementing it by the submission that the mere fact that there were tooth bites on the person of second girl named ‘P’, which finds corroboration from medical evidence, is not sufficient to prove the charge under Section 354 I.P.C. since those tooth bites may have been given by any other person. It was submitted that the 4 prosecution story as proved on record does not inspire confidence and as such, the findings of the learned trial Court acquitting the respondent cannot be termed as perverse calling for an interference by this Court. We will firstly take up the evidence in regard to the complainant ’K’. The prosecutrix was examined as PW-1 and she has reiterated the assertions made in the report lodged with the police that the respondent met them, threatened them with a knife and took them to a nearby cave, though in the complaint it was alleged that the threat was given to kill with a knife, but it was not shown at that time. She stated that the respondent kept them confined in a cave from that time i.e. morning time till the morning of next day i.e. for about 24 hours. She stated that he indulged in sexual intercourse with her. She cried and also pleaded with him but to no effect. Her father and that of her friend came in the morning and they ran away from the place. She admitted that on 11th the accused had met them and her sister Sneh Lata, when they were together and snatched the school back from ‘P’. She went to her house on 11th and her parents were there and she stated that she told about the incident to her mother. She denied the suggestions that she used to write letters to the respondent or her father had consented to her marriage proposal with the respondent, but she denied the suggestion. She however admitted that the respondent and her father were not on talking terms. She stated that the place where the respondent met them on 12th was about 20 minutes walk from her house. She also stated that from that place their village was visible. She denied the suggestion that if some body shouted from 5 there, it can be heard in the village. She admitted that the clothes Exts. P-1 and P-2 are not school uniform and the students are not normally allowed to sit in the class without uniform, which suggests that she may not have worn the uniform since she may not be going to school on that day and the respondent had also met her one day earlier. She stated that when her friend ‘P’ came after bringing the bag within 2-3 minutes, she saw the accused doing sexually intercourse with her and she separated them. Her cross- examination or her examination-in-chief does not suggest that she raised an alarm, made any protest or gave beatings to the respondent or attempted to run away from the place i.e. cave where she stayed with the respondent for almost 24 hours. She never raised an alarm so that it could be heard in the village or on the path to attract the attention and all these facts are sufficient to show that she may be a consenting party. Coming to the question of age, the statement of father of the prosecutrix, who was examined as PW-4 Dhian Chand, is not sufficient to show that he had knowledge about the date of birth of the prosecutrix. There is statement of the Medical Officer that the prosecutrix was subjected to sexual intercourse and the entry in the school record has been produced by PW-16 J.S. Nagar, Head Master, but he admitted that this certificate Ext. PJ was issued on the basis of the original record and he cannot say on what basis, the date of birth was entered in the record. Therefore, the school certificate does not prove the age of the prosecutrix and the learned trial Court after referring to this evidence and other evidence had 6 rightly concluded that the age of the girl was not proved to be less than 16 and the possibility of consent, therefore, was not ruled out. Therefore, the findings of the learned trial Court in acquitting the respondent for the charge under Section 376 I.P.C. cannot be said to be perverse calling for an interference by this Court. Coming to the evidence in regard to the other girl named ’P’, we regret to say that the learned trial Court had not discussed the evidence specifically insofar as it was there against the respondent for the charge under Section 354 I.P.C. There has been an oblique reference to the evidence and not a proper discussion as to the reasons in disbelieving the statement of the prosecution in view of the infirmities in the case. Therefore, we are referring to the evidence rather for the first time specifically in regard to the charge under Section 354 I.P.C. The second girl ‘P’ was examined as PW-2, who stated that the accused caught hold of them from hand, took out a knife and forbid them from going to school, though about the knife, there was no reference in her original statement nor in the statement of her friend ‘K’ or in the statement specifically made by the prosecutrix about taking out the knife. She stated that they were accompanied by their colleague Sneh Lata at that time, though she was not specific as stated by PW-1 ‘K’. She stated that Sneh Lata proceeded to school and when she came back with the bag after taking it from some distance, the respondent gave tooth bites on her arms, cheeks and fondled the breast. When she came back after fetching the bag, she found accused lying on the top of ‘K’ and on then next day, their father 7 came and the respondent ran away. This fact stands established that there were some tooth bites found on the cheeks of this witness as opined by PW-11 Dr. Tejbir Singh who found three bruises and abrasions on the right cheek but there is nothing of any injury on the arms or tooth bites on the arms as stated by PW-2 ‘P’. The mere fact that there is some corroboration to the fact of tooth biting or some marks abrasions on the cheeks of the girl from the medical opinion is not sufficient to hold that these tooth bites were given by the respondent until and unless the evidence is held to be cogent as well as reliable, which is not so in the present case. There are no injury marks or there were bites on the arms as stated by the girl. The conduct of the parents of the girls particularly the father of PW-1 ‘K’, namely, Dhian Chand, who has been examined as PW-4 cannot be said to be normal. He admits that ‘K’ was his daughter, while other girl was his niece (Bhanji) and his testimony shows that he went to the house of his Bhanji in search of his daughter and then went to the house of his brother and when he came back he learnt that the girls have not returned and on the next morning only he goes to the cave, sees both the girls sitting in front of the cave and the respondent was also sitting there. It looks surprising that in case Sneh Lata PW-3 was with the girls when they were taken to the cave and she goes back to the school and then to her house but does not inform the father of the prosecutrix and her cousin that both the girls have been taken to the cave by the respondent. In her statement as PW-3, she has stated that both the girls were her sisters and the name of the father of this witness as well as PW-1 is the same, which shows that she is the real sister of 8 the prosecutrix. She admits that her sister ‘K’ is 4-5 years elder to her, which clearly proves that she is the real sister of the prosecutrix. She also admits that both the girls had told her to tell about the incident in the house. However, she has not been able to give any explanation why she went to the school but did not go to the house to inform her parents about the incident and the only plea of her was that she was scared. She also stated that she did not tell anybody in the school and both the sisters are studying in the same school, but she makes no efforts to inform about the incident to any person in the house or any person in the evening. In case this fact was known to PW-3 Sneh Lata that her sister had been taken to the cave alongwith cousin by the respondent what was the occasion for PW-4 Dhian Chand to search at all other places except the cave where the girl ha been kept. The conduct of PW-4 Dhian Chand, father of the prosecutrix ‘K’ as well as that of PW-6 Phamsu Ram, father of other girl ‘P’ cannot be said to be normal, since they did not find the girls and they relaxed in their houses and on the next day, they found the girls sitting by the side of the cave with the accused. There is nothing in the statement of any of the witnesses including the statements of the girls that the girls had been forcibly retained in the cave against their will or were not allowed to raise any alarm and this story looks improbable that both the girls remained in the cave for almost 24 hours made no attempt to escape and they are found sitting normally when their fathers reach on the next morning and the case is made out against the respondent for forcible abduction and other offences. Thus 9 keeping in view in which the story has been put, no attempts were made by their parents to trace out the girls and the girls were found sitting normally and there are assertions of false implication in view of the attempts of the father of the prosecutrix ‘K’ to settle the marriage with the respondent, we are not inclined to hold that the findings of the learned trial Court acquitting the respondent of the charges framed against him also under Sections 341 and 354 I.P.C. can be termed as perverse apart from the findings under Section 376 I.P.C. In view of the above discussion, we accordingly hold that the possibility of false implication cannot be ruled out and the manner in which the story has been put, does not appeal to the conscience of the Court so as to hold that the findings of learned trial Court acquitting the respondent of the charge framed against him are perverse. Therefore, there is no occasion for this Court to interfere with the findings of acquittal recorded by the learned trial Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. Bail bonds furnished by the respondent shall stand discharged forthwith. ( Deepak Gupta ), Judge April 10, 2009 ( V.K. Ahuja ), (BSS) Judge