IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 583 of 2001. Date of Decision : May 12, 2011 State of Himachal Pradesh Appellant Versus Dhian Chand Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General. For the respondent : Mr. Sanjeev Kuthiala, Advocate, for the respondent. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 8.1.2000 accused was put to trial. In terms of judgment dated 4.6.2001, passed by the learned Sessions Judge, Kullu, H.P. in Sessions Trial No. 43 of 2000, titled as State versus Dhian Chand, the accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 8.1.2000, from her village Bhutti, prosecutrix (PW-1) along with her sisters Kamlesh (PW-2) and Suman had gone to the ‘gharat’ for grinding the grains. Whether reports of Local Papers may be allowed to see the judgment? 2 After leaving her sisters at the ‘gharat’ prosecutrix came back for her house. She had to take tuition from her teacher Sh. Kuldip (PW-5). When she reached near rihri (hillock) she saw the accused coming from behind. She was alone at that time. Accused expressed his desire to have sex with her to which she declined. Prosecutrix ran towards her house but was caught by the accused near the ‘naala’. From there she was dragged towards the ‘naala’ and taken to the field. She cried for help but none came forward. Accused broke the string of her ‘salwar’ and after opening the same forcibly committed sexual intercourse with her. Thereafter, she came home and narrated the incident to her father Sh. Bhim Sain (PW-3) who reported the matter to the police and F.I.R. (Ext. PA) No. 22 of 2000, dated 8.1.2000, under Section 376 of the Indian Penal Code was recorded at Police Station, Kullu. Inspector-Roshan Lal (PW-11) commenced investigation. Prosecutrix was examined by Dr. Shashi Bala (PW-10). From the place of crime, police recovered two coins (Ext. P-1 and Ext. P-2) belonging to the prosecutrix. Broken string (Ext. P-3) produced by the prosecutrix was also taken into possession along with her clothes i.e. ‘salwar’ (Ext. P-4) and underwear (Ext. P-5). Police took the certificate of birth indicating that prosecutrix was a minor. Report of the chemical examiner (Ext. PW 11/F) was taken into possession by the police during investigation. With the completion of investigation challan was presented in the Court for trial. 3 3. The accused was charged for having committed offences punishable under Section 376 read with Section 511 and under Section 506 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 4. In order to prove its case prosecution examined eleven witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded. In defence accused examined one witness. 5. Appreciating the evidence on record, the Court below acquitted the accused of the charged offences. Hence the present appeal. 6. The incident has not been witnessed by any one. According to the prosecutrix she cried for help but none came at the spot. It was only when she reached home that she narrated the incident to her father who reported the matter to the police. Thus testimony of these two witnesses, being material, needs to be examined. However, before we do so we shall deal with the medical evidence on record. 7. According to Dr. Shashi Bala (PW-10) no injury marks of any nature were found on the body of the prosecutrix who in any event was not exposed to coitus. 8. With regard to the age of the prosecutrix the Court blow, relying upon the birth certificate (Ext. PW 6/A) as also certificate (Ext. PW 8/A), came to the conclusion that prosecutrix was less than sixteen years of age. Considering the view which we are likely to take, we do not intend to go into the correctness of this finding. 4 However, we may only mention that the Doctor had advised that ossification examination of the prosecutrix be conducted which according to the Investigating Officer was got done. But we find that there is no such report of ossification test on record determining her age. According to the birth certificate (Ext. PW 6/A) prosecutrix was born on 9.9.1984 and consequently as on the date of the alleged crime she was of 15 years and 4 months. 9. Ms. Kamlesh (PW-2), sister of the prosecutrix, has simply deposed that prosecutrix had told her that the accused had “done wrong act” with her and it is the version of the father Sh. Bhim Sain (PW-3) that prosecutrix had informed him that the accused had “raped” her. 10. However in Court prosecutrix has taken a totally different stand which is in stark contradiction to the contents of the F.I.R. (Ext. PA) got recorded by the prosecutrix herself and also her father. It bears the signatures of both these persons. Whereas in FIR (Ext. PA) not only does the prosecutrix describe the sexual organs (male and female) and the fact that the accused had forcibly committed sexual intercourse with her by penetrating his male organ into her vagina, but in Court, it is her version that the accused “tried to rape her” which attempt on his part was prevented by her. It is her statement that the accused and the prosecutrix struggled continuously for half an hour and the accused ejaculated between her legs and when he became lazy she pushed him aside. Thereafter she got up and ran towards her house. She further states that her 5 underwear and ‘salwar’ got stained with the stains of the discharge of semen of the accused which version of hers stands materially contradicted by the report of chemical examiner (Ext. PW 11/F) wherein it is specifically recorded that no stains of semen were found on the underwear or the ‘salwar’ of the prosecutrix. 11. According to the prosecutrix she had gone to the police station wearing the very same clothes which she was wearing at the time of the alleged crime. She must have tied her ‘salwar’ with the very same string which allegedly was broken by the accused. Now why did she hand over the same to the police the next day and not at the time her clothes were handed over on the previous day. This has not been explained by the prosecution. 12. Her further version that she had been dragged for more than 40 feet and that she had been raped in the field is belied by the fact that no injury marks were found on her body. The terrain was having rough surface. Her clothes were also found not to be stained with mud. No signs of violence or struggle were found on her body. Had she been dragged or struggled for half an hour, not only her clothes would have been torn but there would have been some marks of injury/abrasions on her body, which were found to be none. Medical evidence on record indicates that no injury was found on the body of the prosecutrix, including her private parts. Neither any sign of semen nor any blood were found on her body. All this renders her testimony to be doubtful if not false. She does not appear to be a truthful and reliable witness and it would be 6 extremely unsafe to hold the accused guilty solely on the basis of her testimony which is full of contradictions. Further the genesis of the case, appears not to have been fully disclosed. Why would the accused suddenly walk up to the prosecutrix and express his desire to have sex. True none would falsely put their honour and chastity at stake but then the guilt also has to be proved beyond reasonable doubt. On mere suspicion accused cannot be held guilty. 13. Thus we find that prosecution has not been able to prove the charged offences by leading clear, cogent, convincing and reliable material on record. 14. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. May 12, 2011 (PK)