IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 228/1996 Date of decision: 11. 11. 2009 State of H.P. …..Appellant Versus Ram Swaroop ……Respondent Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. P.M. Negi Dy. Advocate General, with Mr. Ramesh Thakur, Assistant Advocate General. For the respondent : Mr. Neeraj Sharma, Advocate. Surinder Singh (Oral) Respondent was tried and acquitted on 7.3.1995 for the offences punishable under Sections 376 and 323 Indian Penal Code, by the learned Sessions Judge. The acquittal of the respondent has been challenged in this appeal. Prosecution case in brief can be stated as follows. On 4.10.1993, at about 9 a.m., prosecutrix (13) was going to her 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - School. While passing through ”kharota-ka- nallah” she came across a person. He requested her to help him in lifting the load of fuel wood from down the path. She agreed and followed him. It is alleged that no sooner did prosecutrix covered a few steps down ward, she was caught hold of by him, took off her salwar, gagged her mouth with one hand, he made her to lie down on the earth. He also put off his pant and raped her. The prosecutrix raised hue and cry but she was slapped by the respondent and also gave a teeth bite on her cheek. After committing rape, respondent escaped from the spot. The prosecutrix felt shocked, put on her salwar and went crying towards her School. On the way, she came across PW3 Balvinder (18) a boy. He asked her the cause of her weeping. She narrated the entire incident to him and also described his features and told him that he was wearing a red shirt and black pant. Balvinder Singh lifted the prosecutrix in his lap, took her to the house of PW7 Prem Singh. He called her uncle Hukmi Datt, Maya Datt, Madan Lal and few others and - 3 - started searching for the said culprit. On the way, they met PW8 Munshi Ram. He disclosed that the person of the above description was a resident of village Madhala. He met him near “Bansu-ki- bouri”. Thereafter prosecutrix along with aforesaid persons went towards village Madhala. The person of the described features and wearing red shirt and black pant was located out side the house of Sohnu Ram. The aforesaid persons asked about his identity. He disclosed his name Ram Swaroop. The prosecutrix is alleged to have identified him. Thereafter PW5 Kamal Bansal telephonically informed the police. Police reached the spot and recorded statement (Ext. P-B) of the prosecutrix, under Section 154 of the Code of Criminal Procedure at 1.10 p.m. on the same day. It was sent for the registration of the case, on the basis of which a formal FIR Ext. PK was registered. Prosecutrix was got medically examined by PW1 Dr. Brind Kapil. He noticed following contusions and abrasions on her person:- - 4 - 1. Contusion 2 cm x 2 cm bluish colour globular on the cenre of forehead. 2. Contusion 2cm X 1cm bluish colour on the left side of forehead above the left eyebrow. 3. Contusion on the left temporal side leading to the underside or left eye lower aspect. 4. Abrasion lenier obliquely placed on the left side of angle of mouth 2 cm bluish colour. 5. Abrasion lenier obliquely placed on the left side of angle of mouth half centimeter below injury No. 4. Bluish colour. 6. Abrasion 3 cm obliquely placed on left side of upper lip. 7. Abrasion 1 ½ cm horizontally; placed on chin. 8. Abrasion 3 cm on the right side of back of the chest. Bluish Colour. 9. Abrasion 2 cm on the right side of back of the chest. Bluish in colour. On local examination, the Doctor noticed that inside labia majora and vaginal mucosa were inflamed, red and tender. Vagina admitted little finger tight but was painful. Hymen was ruptured. Vaginal swabs were taken and sent for chemical examination. The clothes, to which the prosecutrix was wearing, were sealed and handed over to the Police. The nature of the injuries were opined to be simple. - 5 - Thereafter the prosecutrix was referred to Civil Hospital, Solan, for determining her skeletal age. Medico Legal Certificate of the prosecutrix is Ext. PA. In the opinion of the Doctor, injuries on her person could be due to the sexual assault. The respondent was arrested and was medically examined by PW12 Dr. C.L. Bhardwaj. He was found fit to perform sexual intercourse. His Medico Legal Certificate to this effect is Ext. PW12-A. During investigation of the case, police took into possession the certificate Ext. PC showing her date of birth 10th June, 1980. After receipt of the forensic report Ext. PW15/B and completing the investigation, case was presented in the court for the trial of the respondent. Respondent was charge-sheeted to which he pleaded not guilty and claim trial. To prove its case, besides examining the prosecutrix to corroborate her testimony, prosecution also examined PW3 Balvinder Singh, PW8 Munshi Ram, PW1 Dr. Brind Kapil and also put reliance on - 6 - the testimony of PW6 Bhagat Ram to prove the birth certificate Ext. PD based upon the entries made in the Register of the School. Respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied his involvement in the said episode and pleaded his innocence. While denying the circumstances put to him, he explained that PW Munshi Ram was inimically disposed towards him thus, he was falsely implicated in the case. No evidence in defense was led by the respondent when called upon to enter into his defense. After venturing the evidence, learned trial court did not find the testimony of the prosecutrix worth inspiring confidence. It was noticed that neither the Uncle of the prosecutrix nor her parents were examined and taken into confidence by PW3 Balvinder Singh. The testimony of PW8 Munshi Ram, did not inspire confidence and was against the natural human conduct. Further, there have been contradictions and material - 7 - improvements in the statement of the prosecutrix as she stated that her salwar was stained with blood but neither Doctor nor in the Forensic report found any blood stains thereon. Further, it her salwar was having blood stains even then the prosecutrix was still going on foot towards the School and was in a position to walk, thus it did not appeal to the learned trial Court. Further why PW3 Balvinder Singh, a young boy of 18 years chose to carry the prosecutrix in his lap to village Kharota when she could walk and instead of taking her to her parental house, took to the house of a stranger, and her parents through out were not taken into confidence. We have heard the learned counsel for the parties and have re-appreciated the evidence on record. There is no dispute about the age of prosecutrix. Obviously, she was a virgin and had no sexual experience. PW1 Dr. Brind Kapil did not find any cheek bite on her face. He further admitted that he did not give any opinion with regard to sexual intercourse and - 8 - penetration in his certificate Ext. PA. and in view of the Medico Legal Certificate Ext. PA, he could not say if any rape was committed on the prosecutrix. He only stated that the injuries found on the local examination was suggestive of the sexual assault but he did not mention so in the certificate aforesaid. Now, in view of the above back ground, the statement of the prosecutrix is required to be re-examined closely and with due care and caution. The respondent was not known to her. The prosecutrix as PW2 although stated that respondent met her on the way while going to the School and asked her to lift the bundle of fuel wood. She refused to do so. On her refusal, he dragged her towards the hillock side where she was allegedly raped. Her this version is contrary to FIR. In FIR she stated that she agreed and followed the person seeking help down the path and not upside the path, as stated by her. She totally changed the situs of alleged incident also from that of the site plan Ext. PW15/A, wherein it has been shown 40’ down the path. She - 9 - further stated that when she raised the cries, she was given a slap. She did not make any mention of teeth bite. This version of the prosecutrix does not find mention in Ext. PB her statement recorded by the police under Section 154 of the Code of Criminal Procedure which is a substantial improvement. Further she also stated that after the aforesaid incident respondent had run away. She felt pain in her private parts and the blood was oozing out because of the sexual intercourse. He further stated that she put on her salwar, thereafter she met PW3 Balvinder Singh who lifted her in his lap because she was unable to walk. But in her earlier version Ext. PB she stated that she put on her salwar, while walking on the road she tied the string of her salwar and started going towards the School, it was then Balvinder Singh met her and asked why she was weeping. She narrated about the said incident then he took her to the house of Prem Singh where she also disclosed the entire incident to him. But in her earlier statement, she did not say about her lifting in the lap by PW3 Balvinder - 10 - Singh since she was unable to walk. She also stated in the Court that she had narrated the said story to Hukmi Ram, Maya Datt, Madan Lal and Munshi Ram who had come there and that thereafter all of them went to the house of one Sohnu in village Madhala and told them about the identification of the respondent. Also that it was PW8 Munshi Ram who disclosed that he had seen the boy of said description near “Bansu-ki-Bouri” where he was going to bring fuel wood. Whereas PW3 Balvinder stated that around 9.45 a.m. when he was coming back from village Gurdaspur to village Kharota, on the way he found the prosecutrix weeping. On inquiry, she told him that one person had committed sexual intercourse with her and had run away. He stated that he had seen the respondent running down-ward but he did not say as to what clothes he was wearing and whether he knew him before. He also stated that the prosecutrix has told her that said boy was wearing red shirt and black pant and also having beard but as stated above, he did not say having noted any of such features or clothes. - 11 - Surprisingly, he also did not try to catch him and raise alarm. He even did not mention taking her in his lap as alleged. Further he stated that Prem Singh called Hukmi Ram, Maya Datt and Madan Lal etc. Pertinently, He did not state anything about the arrival of Munshi Ram (PW8) in the house of Prem Singh, as deposed by the prosecutrix. He stated that all of them (except Munshi Ram) went in search of the respondent in the forest and then reached in village Madhala where the respondent was found present and he was identified by the prosecutrix. The perusal of his testimony shows that his version is quite contrary to the statement of the prosecutrix on material particulars. Further he stated that he knew the parents of the prosecutrix. But surprisingly he did not take her to their house, no reason has been assigned for that. Further, PW8 Munshi Ram stated that he was called by Madan Lal while he was coming from village Madhala to his village Kharota. He also stated that Hukmi Ram, Maya Datt and Prem Singh were present there. As already observed above, - 12 - PW3 Balvinder Singh did not name him either having been informed by any of the aforesaid persons or about his presence in the house of Prem Singh. According to him, the prosecutrix informed him that one person, who was wearing red shirt and black pant having beard has committed sexual intercourse with her. On this, he told the people present there that the person of above description met him near “Bhansu-ki-Bouri” where he had gone to fetch wood. Whereas the prosecution case is that he had fled away from the spot. He further stated that when he reached in the house of Prem Singh, no one went towards the jungle in search of the culprit but directly went to village Madhala to the house of Sohnu. This version is contrary to the statement of PW3 Balvinder. He was also confronted with his statement recorded under Section 161 of the Code of Criminal Procedure Ext. PW8/C wherein about the condition of the prosecutrix and having seen teeth bite as stated in the court were not found mentioned which is a material improvement causing doubt on his version. He also denied that he had - 13 - falsely implicated the respondent because of the enmity with him. On the critical examination of the aforesaid evidence, apparently we find that the prosecutrix was not known to the respondent prior to the incident. She alleged the sexual assault on her in the jungle, near “Bansu-ki-Bouri” on the upper portion of the path towards hillock but the site plan depicts the alleged incident below the path 30-40 feet down the hillock. After the incident, respondent is alleged to have fled away from the spot but according to PW8 Munshi Ram, he was seen by him at “Bansu-ki-bouri” cannot be believed. The Police did not recover the fuel wood load either from the spot of the alleged incident or any other place nearby. Presence of PW Munshi Ram has not been stated by PW3 Balvinder Singh in the house of Prem Singh. There is contradiction with respect to proceeding towards village Madhala in search of the respondent, as noted above. The blood stains were not found on the wearing apparels of the prosecutrix. Therefore, in these circumstances, respondent could not - 14 - be connected with the alleged offence beyond a reasonable doubt. The testimony of the prosecutrix is not inspiring confidence. Statement of PW3 Balvinder Singh lacks credence. The place of incident is different in the site plan to what is revealed by the prosecutrix. The parents and the Uncle of the prosecutrix were not taken into confidence as she being of tender age and also not examined nor any explanation was offered for not examining them. The entire matter was pursued by the persons who were not related to the prosecutrix and were inimical towards the respondent. Balvinder (PW3) is also of young age, i.e. about 18 years just 5 years elder to the prosecutrix, who allegedly took her in his lap to the house of Prem Chand, also give rise to some suspicion about his involvement. The statement of PW8 Munshi Ram also lacks probity. Therefore, in view of the aforesaid discussion and the aforesaid reasoning, we find that the view taken by the learned trial Court for recording acquittal of the respondent is borne out - 15 - from the record. Therefore, the impugned judgment of acquittal does not call for any interference. As such the appeal is dismissed. (Surjit Singh),J. November 11, 2009 (Surinder Singh),J (cm)