IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.108 of 1998 Decided on : March 18, 2010 State of H.P. …Appellant. Versus Gappa @ Bal Kishan and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents: Mr. Ajay Sharma, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 18th October, 1997, of learned Sessions Court, whereby respondents, who were charged with and tried for offences, under Sections 376 and 120-B of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, as it emerges from the evidence led by the prosecution, may be stated thus. Prosecutrix, examined as PW-2, was 21 years of age at the relevant time. She lived with her mother in a village in District Una. They had a cattle-shed, which caved-in during the rainy season. They started tethering their buffalo in the cattle-shed of Hoshiar Singh, in village Kolka. Early in the morning, the prosecutrix used to go to the cattle-shed of said Hoshiar Singh to milch the buffalo. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. On 14th September, 1995, at 6 a.m., the prosecutrix started from Jawalapur for village Kolka with a container to milch the buffalo. When she reached a point about 20 metres away from her house, she noticed the three respondents standing by the side of the path. They overpowered her. Respondent Gappa alias Bal Kishan broke the string of her Salwar, while respondent Dulu Ram lowered her Salwar and committed rape on her. Braham Dass, the third respondent, kept standing by the side of the path and was laughing. 4. After the crime was committed, the prosecutrix went to the cattle-shed of Hoshiar Singh in village Kolka. Hoshiar Singh’s wife, PW-7 Rachna, was there. Prosecutrix requested her to milch the buffalo for her and to deliver the milk at her place. PW-7 Rachna, after milching the buffalo, carried the milk to the house of the prosecutrix. On enquiry by the mother of the prosecutrix, namely PW-1 Roshni Devi, as to why the prosecutrix herself had not come, PW-7 Rachna told that the prosecutrix was looking frightened and that she told her that some boys were committing mischief with her and so she had not come to deliver the milk. 5. In the evening, the prosecutrix went home and when her mother asked as to why did not she return with the milk, in the morning she started crying and told her that respondent Gappa, Braham Dass and one more boy, who had trimmed beard waylaid her and the boy, who was …3… having trimmed beard, committed rape on her. PW-1 Roshni Devi, the mother of the prosecutrix, went to the Pradhan of the Panchayat, namely Roshan Lal (PW-3), but he was not at home. Next day again she went to the Pradhan, in the morning. 6. Around 2 p.m., on the next following day, i.e. 15th September, 1995, a Police party headed by ASI Swaroop Chand (PW-13) went to the village of the prosecutrix. On coming to know that a girl had been raped, the said ASI summoned the prosecutrix and her mother and the Pradhan of the Panchayat. He also visited the spot. At 8 p.m., he recorded statement, under Section 154 of the Code of Criminal Procedure, of the mother of the prosecutrix, namely PW-1 Roshni Devi. The statement was sent to the Police Station, where case was registered vide FIR Ex. PW-13/A. 7. Next day the prosecutrix was got medically examined. Medical examination was conducted by PW-14 Dr. (Mrs.) P.L. Nanda, who found that the hymen of the prosecutrix was recently ruptured, as its edges were swollen and reddish. She examined the prosecutrix at 4.10 p.m., on 16th September, 1995, and opined that the injuries noticed by her, including rupture of hymen, could have been sustained within two days. Thereafter, statement of the prosecutrix, under Section 161 of the Code of Criminal Procedure, was recorded by the police. …4… 8. Respondents were arrested. Respondent Dilu Ram was identified to be the man, who was having trimmed beard and who had committed act of intercourse. His underwear was taken into possession. It was sent to the Chemical Examiner, who vide report Ex.PW-13/D found human semen thereon. 9. On being sent up for trial, the respondents were charged with offences, under Section 376 and 120-B of the Indian Penal Code. They pleaded not guilty to the charge. Prosecution adduced evidence to substantiate the charge against the respondents. Respondents pleaded innocence and stated that they had been falsely implicated, on account of enmity. It has been stated that the prosecutrix had been engaged to respondent Gappa, but lateron that engagement was broken and that was the reason for his false implication. It was also stated that mother of the prosecutrix had been convicted and fined by the Panchayat, on a complaint filed by Bishan Dass, the father of respondent Brahmu. Also, it was alleged that a criminal case, instituted by the family members of respondent Dilu against the mother of the prosecutrix, was pending. 10. Trial Court has acquitted the respondents, holding that opinion evidence of PW-14 Dr. Nanda does not fit into the prosecution story, there was unexplained delay in reporting the matter to the police, the prosecutrix herself did not lodge any report with the police, conduct of the …5… prosecutrix, her mother and PW-7 Rachna Devi also renders the prosecution version doubtful, identity of respondent Dilu was not established, recovery of Parna, which was allegedly used to gag the prosecutrix’ mouth was doubtful and there was enmity between the mother of the prosecutrix and the respondents. 11. We have heard the learned Assistant Advocate General as also the learned counsel for the respondents and perused the record. 12. It has come in the evidence that the prosecutrix not only used to visit the place of Hoshiar Singh, the husband of PW-7 Rachna Devi, for the purpose of tethering and milching the buffalo, but also used to graze his cattle, by taking them towards his fields situated by the side of some dam, and at times she even stayed at his place in village Kolka for the night. Reference in this behalf may be made to the testimony of PW-7 Rachna Devi. Not only this, it has also been stated by PW-7 Rachna Devi that the people of the area used to object to the prosecutrix staying at their place in the night. Also, an explanation has been given by PW-7 Rachna to exclude the involvement of her husband Hoshiar Singh, by saying that her husband had not been at home on the previous night as he had gone to guard maize crop. It has also come in the evidence that after the case was registered Hoshiar Singh, the husband of PW-7 Rachna Devi, applied for anticipatory bail. That …6… application had been moved on 16th September, 1995 and was disposed of on 17th September, 1995. 13. It is in the aforesaid background that the learned trial Court has appreciated the evidence and made an observation that involvement of a person, other than the respondents, in the commission of the crime cannot be ruled out. 14. Incident is alleged to have taken place on 14th September, 1995 at 6 a.m. The prosecutrix did not lodge any report with the police. There is no explanation for her not lodging the report. Police visited the village, where the prosecutrix resided, on the next following day around 2 p.m., per testimony of PW-15 Tek Chand as also PW-1 Roshni Devi. Immediately, the mother of the prosecutrix, the prosecutrix and the Pradhan of the Panchayat were called by the police. However, statement, under Section 154 of the Code of Criminal Procedure, was recorded only at 8 p.m. and that too not of the prosecutrix but of her mother, PW-1 Roshni Devi. Prosecution has offered no explanation why the prosecutrix’ own statement had not been recorded and why there was delay of six hours in making even the statement of the mother of the prosecutrix. 15. It has also come in the evidence, per testimony of the prosecutrix, that she was waylaid at a distance of only 20 metres from her house. House of PW-7 Rachna …7… Devi, where the prosecutrix was going to milch buffalo, is at a distance of 1½ km from the place of occurrence. Prosecutrix instead of returning to her own house, after the alleged incident of rape, went to Rachna Devi’s cow-shed at a distance of 1½ km. This conduct is abnormal. 16. It has been stated by PW-7 Rachna Devi that on the fateful day, the prosecutrix had gone to graze the cattle by the side of the dam and she returned late in the evening. Prosecutrix herself says that she stayed in the cow-shed for the day, because she had been feeling pain, on account of the alleged criminal act committed against her. Had the prosecutrix been subjected to rape, which, per opinion of PW-14 Dr. Nanda, was the first act of intercourse for the prosecutrix, she could not have gone to graze the cattle on that day. Prosecutrix did not narrate the alleged incident promptly to anybody, even to PW-7 Rachna at whose place she reached within a few minutes of the incident. Only thing she disclosed to PW-7 Rachna was that some boys were trying to commit mischief and that too when she requested PW-7 Rachna to carry the milk to her place and the latter enquired as to why she herself was not carrying the milk to her house. 17. Prosecutrix has admitted that she had another set of clothes, which she changed in the cattle shed. She stated that she had kept one set of clothes in the cattle- shed. Also, she stated that the clothes, which she was …8… wearing at the time of the incident, had been washed by her. Why should have the prosecutrix kept another set of clothes in the cattle shed and why should have she herself washed the clothes, which were allegedly stained with blood, has not been explained by the prosecution. 18. Prosecutrix’ statement was recorded only, under Section 161 of the Code of Criminal Procedure, and that too on 16th September, 1995. There is no explanation for not recording the statement of the prosecutrix by the police on 15th September, 1995, especially when the police had reached the village of the prosecutrix on that date, around 2 p.m. Statement of the prosecutrix was recorded only after she had been medically examined. 19. Prosecutrix stated that her statement had been recorded by the police on 15th September, 1995 in the village. No statement of the prosecutrix purporting to have been recorded on 15th September, 1995, has been proved on record by the prosecution nor has any explanation been offered for withholding that statement. It is quite likely that the testimony of the prosecutrix that she made a statement on 15th September, 1995, is correct, because she being the prosecutrix the police was supposed to have recorded her statement first and not that of her mother or anybody else and that statement speaks of involvement of some other person, may be Hoshiar Singh, who applied for anticipatory …9… bail on 16th September, 1995, the same day on which the prosecutrix was medically examined. 20. Opinion evidence of PW-14 Dr. Nanda also does not support the prosecution version. The witness examined the prosecutrix on 16th September, 1995 at 4.10 p.m. and gave the opinion that the injuries, which term includes rupture of hymen, appeared to have been sustained within two days, which implies within 48 hours. However, according to the prosecutrix, the incident had taken place at 6 a.m. on 14th September, 1995, i.e. about 58 hours prior to her medical examination. 21. It has been stated by PW-1 Roshni Devi, the mother of the prosecutrix, that respondent Dilu is the son of her distant cousin, named Ram Asri, and that he alongwith Ram Asri and Ram Asri’s father Jodha, resides in village Jawalapur or say the same village as that of the prosecutrix. Now, when respondent Dilu is the son of a distant relative of the mother of the prosecutrix and resides in the same village as the prosecutrix, there could not have been any reason for the prosecutrix not knowing him by name or even by face or by some other description, say by the name of his mother. 22. Also, we find from the evidence that respondent Gappa was engaged to the prosecutrix but that engagement was broken. Prosecutrix herself admitted this fact. It has been admitted by the mother of the prosecutrix, namely …10… PW-1 Roshni Devi, that she had been convicted by the Panchayat on a complaint filed by the mother of another respondent and that a criminal trial against her was going- on on the basis of a case instituted by the parents of the third respondent. In view of the abovestated position, we do not think that the reasoning given by the learned trial Court, for acquitting the respondent, is not supportable by the evidence on record or is perverse. Hence, the appeal is dismissed. ( Surjit Singh ), J March 18, 2010(sd) ( Rajiv Sharma ), J