IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 238 of 1997 Date of decision: 17.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Dharam Chand & another .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. Y. Paul, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 09.09.1996, passed by the learned Sessions Judge, Mandi, Kullu & Lahul Spiti districts at Mandi, District Mandi, in Sessions Trial No. 35 of 1995, acquitting the alleged accused under Section 376 read with Section 34 of the Indian Penal Code, in reference to FIR No. 235 of 1994. 2. The case of the prosecution in brief is that the 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- prosecutrix (PW-4) has been staying with her mother, Smt. Savitri Devi PW, in the “B.B.M.B. Colony” at Sundernagar. On 27.08.1994, at about 9 A.M., she was going to the house of one Anil Kumar to wash the clothes. No sooner did she reach the 'Zero Chowk' at Sundernagar, Dharma accused, a vegetable vendor, met her and asked to accompany him to his room, but she refused. The accused threatened and forcibly dragged her and pushed her inside the room of accused Karam Chand, on the cot, and then Dharm Chand accused committed rape on her and left open the door. Karam Chand entered simultaneously and did the same act, during this period her mouth was gagged preventing her to raise any alarm. The prosecutrix revealed about this episode to her mother and then to her sister Bimla and the matter was reported to the police in terms of FIR No. 235/94, Ex. PW-6/A, under the aforesaid sections. 3. The prosecutrix/victim was medically examined by Dr. Rafia Bano (PW-3), on 27.08.1994, no recent sexual assaulted was opined. The age of the prosecutrix was assessed between 17 to 19 years. 4. The prosecution examined PW-1 Dr. S.K. Misra, PW-2 Dr. Jaya Vaidya, PW-3 Dr. Rafia Bano, PW-4 prosecutrix, PW-5 Devki, PW-6 Bimla, PW-7 ASI Suram Singh, PW-8 Inspector Mohinder Singh and PW-9 Inspector/SHO Hans Raj. The trial was held in camera. The accused persons through their statements under Sections 313 Cr.P.C. denied the prosecution case. 5. On analysis of the prosecution witnesses, we notice that the victim / prosecutrix PW - 4 (name withheld), was of low IQ. She used to wash the clothes and utensils in the vicinity to earn her -: 3 :- livelihood. As usual, she was going in the morning to the house to wash clothes and according to her, Dhram Chand accused met her on the way and told her that he has got some work. Thinking that he was interested to engage her for cleaning his clothes, she accompanied him to his room. Further, according to her, she was sexually assaulted there by Dhram Chand accused and when he started weeping, she was given a chappal (slipper) blow on her face and thereafter the door was unbolted. Then Karam Chand accused, who was waiting outside the room, entered inside and also sexually assaulted her. She also stated that she used to tie ‘Rakhi’ to accused Dharam Chand and used to treat him as brother. Both the accused persons tried to pay her Rs. 20/- each and she threw the same on their faces and thereafter she informed Devki about the incident and then went to her mother. Thereafter, the matter was reported to the police and she was medically examined. Further, according to PW-4, she did not know Karam Chand accused earlier but she knew only Dharam Chand accused. In the cross-examination she has denied the defence that she never tied any ‘Rakhi’ to accused Dharam Chand and that her mother was interested to marry her with him. But according to her, he was already married. She further denied that accused Dhram Chand had refused to marry her on the ground that she was ‘Jhali’ (idiot) type of girl and further stated that accused Dhram Chand had taken her to the room of Karam Chand. However, Dhram Chand was not residing there. The prosecutrix stated to the police in the FIR that she used to tie ‘Rakhi’ to Dharam Chand. When confronted with the FIR it did not find mention there. Even the fact of giving blow with chappal (slipper) by accused Dharam Chand on -: 4 :- her face also did not find mention in the FIR. Further, she stated that Dharam Chand took one hour inside the room. But this fact was not mentioned in the FIR when she was confronted with it. She has denied that false case was registered against the accused persons as accused Dharam Chand had refused to marry her. Further the fact of giving Rs. 20/- by each of the accused person also did not find mention in the FIR. She further stated that she had made statement while lodging the FIR that Karam Chand was waiting outside but again this fact was not found mentioned in the FIR. 6. On analysis of the prosecution witnesses and the material on record several improbabilities have been noticed by the learned Sessions Judge. The learned Sessions Judge has observed that such instances of sexual assault can be done in a secluded place and not in a public place. The narration of the fact by the prosecutrix/victim that the sexual assault was committed for one hour by the accused Dharam Chand seems to be untrustworthy and repeating of the same act by accused Karam Chand also seems to be unbelievable. When the victim/prosecutrix was examined by Dr. Rafia Bano, PW-3, no marks or injuries of sexual assault were found on her body. The private part of the prosecutrix did not evidence discharge and bleeding. PW-3 opined that no recent sexual assault was committed on the victim/prosecutrix. It assumes importance especially when the alleged incident had taken place in the morning at about 9 A.M. and the prosecutrix was examined on the same day at 1 p.m. In the cross-examination the said doctor has stated that the prosecutrix was also referred for radiological examination, where her age was found 17 to 19 years, as per report, Ex. PB, given by Dr. Jaya -: 5 :- Vaidya. The medical report completely ruled out any possibility of sexual assault on the victim/prosecutrix. 7. Accused Dharam Chand stated to be already married and the prosecution has not been able to prove that he refused to marry the victim/prosecutrix. PW-5 Smt. Devki, the neighbour, stated that the victim/prosecutrix made complaint to her at that time while weeping but when confronted with her statement under Section 161 Cr.P.C. this fact was not found recorded therein that she was weeping at that time. Had it been so, it would have been a relevant fact for the appreciation of the evidence of the prosecutrix. 8. PW-6 Smt. Bimla Devi, the elder sister of the victim/prosecutrix, in her cross-examination has denied that their family was trying to marry the prosecutrix with accused Dharam Chand. 9. On the basis of the material on record and the prosecution witnesses, learned Sessions Judge has found that the case is concocted one and the prosecution’s case cannot be said to be trustworthy. In our considered view also, prosecution has not been able to prove its case beyond reasonable doubt and there is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 17th August, 2010 (virender)