1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 635 of 2000 Judgment reserved on 6.10.2010 Decided on December_15, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Mano alias Man Singh alias Nareshu …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? Yes. For the appellant: Mr.Rajinder Dogra, Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Anup Chitkara, Advocate. Justice R.B. Misra,J. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 28.7.2000, passed by Learned Sessions Judge, Chamba, H.P., in Sessions Trial No. 9 of 2000, under Sections 376 and 506 of the Indian Penal Code, acquitting the alleged accused/respondent. 2. The prosecution case is that the prosecutrix (name not given), on 17.7.1999, was in the house alongwith her younger brothers, and at about 8.20 P.M., accused/respondent came to her and asked her to accompany him to nearby fields for taking peaches. Thereafter, accused took the prosecutrix about 100 meters away on the upper side of her house, gagged 2 her mouth and committed rape upon her, thereafter, accused/respondent ran away. The prosecutrix reported the incident on 20.7.1999 to her parents when they came back home accordingly the matter was reported to the police. After investigation, accused was charged for the aforesaid offences. 3. In order to prove its case, the prosecution has examined as many as 12 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. The prosecution examined victim/prosecutrix (being minor) PW.1. PW.2 Smt. Kamlo, mother of the victim/prosecutrix and PW.3 Dharmu, father of the victim/prosecutrix, who reported the matter Ex.PD to the police. 5. PW.1 the victim/prosecutrix has stated that when she was playing at the roof of her house together with small children, accused/respondent came to the roof and asked her that if she wanted to take peaches, she should accompany him to nearby fields. During those days, maize crop was ready to be harvested. PW.1 has further stated that she told to the accused/respondent that it was quite dark and as such, she would not go, but the accused insisted her to go to the nearby fields. Accordingly, PW.1 went towards the fields 100 meters away on the upper side of her house, the accused, then gagged her mouth, held her arms and then opened her salwar and also untied his pant and committed sexual intercourse. On her crying, the accused threatened that he would kill PW.1. When PW.1 started weeping, accused took out a dagger, kept it on her 3 neck and threatened her that in case, she discloses the incident to anyone he would kill her. As per testimony of PW.1, her parents came back after two days, when the incident was disclosed. In cross-examination, PW.1 has stated that other children Bhoti, Sonu, Anju and Dogri were playing with her in the roof of her house. PW.1 has further stated in cross- examination that accused had not asked her to accompany her for taking peaches in presence of the children and she had disclosed the police that after the rape, accused had kept dagger at her neck and threatened her that in case she discloses about the occurrence, she would be killed, however, such aspect has not been recorded by the police. As per testimony of PW.1, she told to the police that before the occurrence, she was playing with the children at the top of her house and during incident, it was dark and her shirt was torn in the occurrence, however, the same was not taken into possession by the police. During the occurrence, when accused threw her down, she suffered injuries on the side of her left eye from which blood oozed out. The injury was seen by the police. PW.1 has further stated that with the blood, that oozed out from her vagina, her salwar was stained. PW.1 has further stated that there are 5-6 houses near her house and PW.1, however, has not sent any message to her parents to come early. 6. PW.2 Smt. Kamlo, mother of the victim-prosecutrix, stated that in the last rainy season, when maize crop was riped, she had gone out alongwith her husband leaving victim- 4 prosecutrix and other small children in the house. When PW.2, on fourth day, came back home, she was told by the victim- prosecutrix about the said incident that accused had taken her on the pretext of providing her fruits. PW.2, in her cross-examination, has stated that the accused had taken her daughter to the fields on the pretext of providing her fruits. PW.2 has further stated that there are 4-5 houses near her house. PW.2 has further stated that it was wrong to suggest that PW.1 ( victim-prosecutrix) was of 20 years of age and it was also wrong to suggest that PW.1 was married to Baldev about 2-3 years back and has also denied that PW.1 had come from the house of Baldev. In view of testimony of PW.2, there were having injuries on the private parts of the victim- prosecutrix and her salwar was stained with blood and PW.2 washed the same, but such thing was not told to the police. PW.2 has further stated that the victim-prosecutrix has not been given any treatment before the matter was reported to the police. 7. PW.3 Dharmu, father of the victim-prosecutrix, has stated that her daughter was 15 years of age on 17.7.1999 and he was informed by his wife (PW.2) that the victim-prosecutrix was raped by accused on 17.7.1999 during night time. Accordingly, he reported the matter to the police vide Ex.PD. PW.3 has further stated that date of birth of the victim-prosecutrix was recorded in the Panchayat. As per testimony of PW.3, in cross-examination, he has given a written application to the police, which was written 5 by one Shri Chatro, but that application has not been placed on record. PW.3 has further stated that heNovember was given 3-4 days time to produce the accused. PW.3 has further stated that he asked the parents of the accused/respondent to convene a 'Biradri' meeting, but mother of the accused/respondent threatened him that she would involve him in the case, therefore, out of fear, he reported the matter to the police. PW.3 had informed the police about the threat given by the mother of the accused/respondent. 8. PW.4 Ramesh, associated with the police, has stated that the salwar of the victim-prosecutrix was stained with plenty of blood, however, salwar shown to PW.4 at the time of making the statement before the Court, there was not having any blood stains. PW.4 has further stated in cross-examination that maize crop ripes in the month of 'Kartik' and in the month of 'Haad', the plant of maize is about 4 ft. high. In view of testimony of PW.4, when the salwar was taken into possession, maize crop was upto waist height. 9. PW.5 Mahinder Kumar, associated with the police, has not supported the case of the prosecution. PW.6 Dr.V.K. Pathak, who made X-ray and made radiological age of the victim-prosecutrix has assessed age of the victim-prosecutrix between 13-15 years, however, in cross-examination PW.6 has stated that he had not clinically examined the prosecutrix. 10. PW.7 Chaman Lal Sharma, posted as Gram Panchayat Vikas Adhikari, is stated to have issued birth certificate of the victim-prosecutrix in reference to the entry of 6 Parivar Register, according to which, the victim-prosecutrix was born on 27.4.1984, however, Births and Deaths Register was not available in the said Panchayat. Certificate (Ex.PH) was an abstract of Parivar Register (Ex.PJ). PW.7 has further stated that he is not aware as to who reported the birth of the victim- prosecutrix at the time of its entry and he is also not aware about the entry of date of birth in the Parivar Register. 11. PW.8 Dr.Madhu Kaushal, medically examined the victim-prosecutrix, on 22.7.1999, i.e., five days after the occurrence, and has stated that the victim-prosecutrix had changed her clothes which she was wearing at the time of incident and had also taken bath PW.8 had also noticed menses commenced from 21.7.1999. After examination of the victim- prosecutrix, PW.8, did not find any signs of struggle on her body. PW.8 has also did not find any semen stain over the external genetalia, however, in her (PW.8) opinion, as per MLC (Ex.PL), victim-prosecutrix had been subjected to sexual intercourse. In cross-examination, PW.8, had not noticed any injury on the side of left eye of victim-prosecutrix. PW.8 has also stated in cross-examination that in case of rape and resistance by the lady, signs of struggle will certainly appear on the persons of said lady. PW.8 also did not notice blood stains on salwar (Ex.P1) shown to her. 12. PW.9 Head Constable Madan Lal visited the spot at village Dogiri and prepared site plan (Ex.PM) of the place of occurrence and had taken into possession the salwar which the victim-prosecutrix wearing at the time of occurrence. PW.9 7 further stated in cross-examination, that he did not notice injury on the eye of the victim-prosecutrix. PW.9 has further stated in cross-examination that in Kihar area, the maize crop ripens in the end of October month and peach fruits are found in the month of October in that area because of its height. PW.9 has further stated that in the month of July peach fruits were there, but these were not riped, however, children eat them. 13. PW.9-A Inspector Krishan Chand recorded the FIR (Ex.PD). In cross-examination of PW.9-A, the victim-prosecutrix had not stated to him that Bhoti, Sonu, Anju and Dogri were playing with her prior to the occurrence. The victim-prosecutrix had also not stated to PW.9-A that accused had threatened her by putting a knife on her neck. 14. The testimonies of PW.10 Head Constable Om Prakash, PW.11 Constable Diwan Chand and PW.12 H.S. Narula, Radiographer, are formal in nature, as the same have been made in due discharge of their official duty. 15. On analysis of the prosecution witnesses and materials on record, we notice that in statement of victim- prosecutrix, recorded under Section 161 Cr.P.C., (Ex.PB), there is no mention that the accused had asked her to accompany him for taking the peaches, on the contrary, it has been recorded that the accused asked the victim-prosecutrix to come with him to the maize fields and when she refused, accused put his hand on the mouth of the victim-prosecutrix and forcibly took her to the maize fields. In view of the testimony of PW.1, (victim- prosecutrix) she was taken to maize fields on the pretext of 8 taking peach fruits and the children, namely, Bhoti, Sonu, Anju and Dogri, were present when the accused took the victim- prosecutrix with him, however, they were neither examined by the prosecution nor named in the list of the witnesses. As per prosecution, when victim-prosecutrix started weeping, accused took out a dagger and kept it on the neck of the victim- prosecutrix and threatened her in case she would disclose the incident to anybody, she would be killed. Such part of the statement of the victim-prosecutrix when confronted with (Ex.PB), there is no mention about the dagger in possession of the accused/respondent. Even PW.9-A Krishan Chand, in his cross-examination, has stated that the victim-prosecutrix had not stated him that accused had threateNovemberned her by putting a knife on her neck. 16. The rape was alleged to have been committed on the victim-prosecutrix in the fields, where the victim- prosecutrix might have suffered injuries on her parts of the body, but in cross-examination the victim-prosecutrix had referred only one injury on her left eye, and such injury does not find mention in MLC (Ex.PL) or in statement of the doctor Mrs. Madhu Kaushal (PW.8). So much so, PW.8 in her te18stimony has stated that entire body of the victim-prosecutrix was examined but no sign of struggle was found and no semen stains were found in the vagina genetalia. PW.8 had also not noticed injury on the left eye of the victim-prosecutrix. Such contradiction, also makes the prosecution case weak18. 9 17. Statements of PW.2 Smt. Kamlo, mother of the victim-prosecutrix and PW.3 Dharmu, father of the victim- prosecutrix, are only with respect to narration of the occurrence to them by the victim-prosecutrix. Both these witnesses have improved their version. PW.2 Smt. Kamlo has stated that accused had taken her daughter on the pretext of providing her fruits, but this fact was not mentioned in (Ex.PC) i.e the statement of this witness, recorded under Section 161 Cr.P.C. Occurrence is stated to have taken place in the month of July when the maize crop was ready for harvesting, whereas, in the village Dogri, situated at such a height, maize crop becomes ready for harvesting in the last week of October. 18. In view of statement of DW.1 Hans Raj18, expert in the matter as an Agricultural Development Officer, Salooni, the area, where the occurrence took place, maize crop ripens in the last week of October month, such statement was also corroborated by DW.2 Ramanand. This fact further gets support from the statement of PW.9 Madan Lal, who 18was the main Investigating Officer in the present case. The condition of crop narrated by the victim-prosecutrix, indicates that the occurrence might have occurred in the month of October, if that be so, testimony of the victim-prosecutrix does not inspire confidence and she might have given false statement only to implicate the accused/respondent in this case. 19. In view of the testimony of the victim-prosecutrix, accused asked her to accompany him to the n18earby fields for taking peaches, however, such part of her statement is totally 10 false and cannot be relied upon, as the area, where occurrence took place, peach fruit ripens in the month of October, as such, there was no question of asking the prosecutri18x to accompany the accused to nearby fields to take peach fruit. In reference to the cross-examination of Investigating Officer (PW.9) Madan Lal, the area where the occurrence took place, peach fruit found in the month of October. In view of testimony of PW.9, Madan Lal, though in the month of July peach fruit is not ripened, yet the children eat them. Such statement, PW.9, appears to be wrong because when fruit ripes in the month of October, it cannot be considered worth eating in the month of July i.e. before three months it ripens. 20. In view of testimony of PW.6 Dr.V.K.Pathak, Radiologist, that the age of the victim-prosecutrix was between 13-15 years gets support from the judgement of Hon'ble Supreme Court in Jaya Mala Versus Home Secretary, Government of Jammu & Kashmir and others, 1989 SCC (Cri) 502, where on radiological and orthopaedic test regarding determination of the age, the Court took judicial notice of the margin of error of two years on either side in age ascertained in such examination. Since, as per testimony of PW.3 Dharmu, her daughter ( victim-prosecutrix) was 15 years of age and as per testimony of Radiologist, PW.6, Dr.V.K. Pathak, the age assessed was 13-15 years, and the age of the victim-prosecutrix was about 17 years. 21. In view of decision of Hon'ble Supreme Court in Radhu Versus State of Madhya Pradesh, (2008) 2 SCC (Cri) 2007, 11 in rare cases, the parents are found to pursue a gullible or obedient daughter to falsely implicate the accused/respondent to extort money or to take revenge in rape cases. However, the relevant observation made therein, is extracted as below:- “6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an interference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a “rape”, if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.” In view of the testimony of PW.3, made in cross- examination, before referring the matter to the police, a 'Biradri' Panchayat was called, but in the 'Biradari' Panchayat, mother of 12 the accused/respondent threatened him that she would involve him in this case, therefore, out of fear, PW.3 Dharmu reported the matter to the police. In cross-examination, PW.3 Dharmu has stated that he had given a written application to the police which was written by one Chattro, surprisingly, the said application is not in the file, as such, testimony of PW.3 cannot be inspiring confidence. 22. In view of narration of incident made by PW.1 ( victim-prosecutrix) she might have suffered several injuries on her body and in view of her own testimony, she had suffered injury on her left side of the eye, however, such thing was not noticed by PW.8 Dr.Madhu Kaushal as well as PW.9 Madan Lal, as such, testimony of the prosecutrix is not inspiring confidence and prosecution case becomes doubtful in view of the observation of Hon'ble Supreme Court made in Radhu's case (supra). The relevant paragraph 13 is extracted as below:- “We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasion on her arm and a contusion on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongful confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration.” 23. In view of the observations of Hon'ble Supreme Court in Dinesh Jaiswal Versus State of Madhya Pradesh (2010)2 SCC (Cri)60, though evidence of the victim-prosecutrix is liable to be believed save in exceptional circumstances, but to hold that a prosecutrix must be believed irrespective of 13 improbabilities in her story, is unacceptable. In the facts of the present case, the contradiction goes to the root of the case, as such, the testimony of the victim-prosecutrix herein is not inspiring confidence. In view of the observations of Hon'ble Supreme Court in Tameezuddin alias Tammu Versus State (NCT of Delhi), (2009)15 SCC 566, paragraph-9, the testimony of the prosecutrix in the present case is not to be accepted, as her narration of the fact appears to be improbable. Paragraph-9 of Tameezuddin's case (supra), is extracted as below:- “9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.” 24. The entry of Parivar Register is stated to be not conclusive and binding evendentiary value, in view of the decision of this Court D.B. In State of H.P. versus Narender Kumar alias Hira, 2010 CRI.L.J. 3545. For convenience relevant observations are quoted as below:- “8.The skigram and the ossification test was carried outi on the prosecutrix by Dr.J.P.Kaushik (PW.2) and as per his report (Ext.PW.2/A), her age was determined to be 15 to 16 years. He clarified that the development of the bones of a person depends upon various factors like dietary, climatic and hereditary conditions. He opined that as compared to a good nutrient diet a person taking less proteins and less energy diet is likely to have 14 slow development of bones and while determining the age of the prosecutrix he has not taken these factors into consideration. Therefore, the report by itself cannot be said to be of conclusive or binding nature. He has admitted that the bony age of a person can vary two-three years on positive or negative from higher strata of society and her development of bones not being complete cannot be ruled out. Importantly, the report is dated 10.1.1992 and the alleged offence is stage to have taken place on 31.12.1991. keeping in view the negative and positive variations while determining the age of the prosecutrix it cannot be said that the age of the prosecutrix would definitely be not more than eighteen years. We are fortified to take his view, keeping in view of the decision taken by the Apex Court in Jaya Mala v. Home Secretary, Govt. of J. & K. (1982) 2 SCC 538: (AIR 1982 SC 1297 : 1982 Cri LJ 1777); Daya Singh V. Sahib Singh, (1991) 2 SCC 379: (AIR 1991 SC 930: 1991 Cri LJ 1370) : State of Rajasthan V. Ram Narain, (1996) 8 SCC 64: (AIR 1996 SC 2987: 1996 Cri LJ 1882) and by a Division Bench of this Court in State of Himachal Pradesh V. Om Prakash, Latest HLJ 2005 (HP) (DB) 179. 9. The other evidence on this issue itself is the Family Register (Ext.PW.8/A) maintainedi by the Gram Panchayat Officer, Nayaye Panchayat Kendra, which records the date of birth of the prosecutrix to be 3.3.1977. the same has been proved by Sh.Ram Dutt Sharma (PW.8), Gram Panchayat Adhikari, Gram Panchayat Titota, Tahsil Anup Shahar, Distt. Bulandshahar, U.P. The document as prepared and maintained raises doubt about its genuineness. The Pariwar Register is not shown to be maintained under any statute. Iti does not bear the signature of either the Pradhan or any other officer of the Panchayat. Even according to PW.8 the register is neither printed in a Government press nor issued by any panchayat officer and is easily available in the open market. In fact the same was purchased and prepared by 15 him in June, 1992 i.e. after the date of the alleged incident. He also did not verify the entries made ini the register though previous registers were available with him. The prosecution has chosen neither to produce nor prove the entries made in the said registers. This witness has admitted to be in touch with PW.4. He admitted to have deleted the names of two persons entered as family members of PW.4. This he did even though they had died in ithe year 1987 and 1969. if the register was prepared in June, 1992 then obviously the names of the persons having died prior thereto could not have been entered into therein. The manner of preparation of the Pariwar Register raises doubt about its authenticity and genuineness. Importantly, the Pariwar Register does not disclose the name of the person who had disclosed the information on the basis of which the said entry of date of birth of the prosecutrix was made there. PW.8 was not in serve at the time of making the entry in the earlier registers and the Pariwar Register is also not