IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.198 of 1995 Reserved on 8.4.2009 Decided on: 10.4.2009 State of H.P …..Appellant. VERSUS Mauzi alias Kishori Lal & another …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting?1No For the Appellant: Mr. Rajesh Mandhotra, Dy.A.G for the appellant For the Respondents: S/Shri Y.Paul and Dinesh Kumar, Advocates for respondent No.1 Sh.K.C.Rana, Sr.Advocate with Mr.Dinesh Kumar, Advocate for respondent No.2 Deepak Gupta,Judge This appeal by the State is directed against the judgement dated 31.5.1994 passed by the Learned Sessions Judge Kangra at Dharamshala in Sessions Case No.4/K/VII-1994 acquitting the accused of having 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes committed offences punishable under Sections 376/306/109 of the Indian Penal Code. 2. The prosecution story, in brief, is that on 12.9.1993 the prosecutrix (since deceased) who was a student of Class-X had gone to the village water source (Bauri) to take a bath and wash her clothes. While she was bathing, the accused Mauzi son of Soma came there. He molested her and forcibly opened the nara (waist band) of her salwar and subjected the prosecutrix to forcible sexual intercourse. Though the prosecutrix raised a hue and cry, none came to the spot. Mauzi Ram after raping the prosecutrix left her at the bauri. The prosecutrix returned home and none of her family members were there. Because of the horrific act committed on her, she was ashamed and she consumed insecticide which had been kept for preservation of wheat. She immediately started vomiting. In the meantime, her mother Smt.Shimlo Devi came home. The prosecutrix narrated the incident to her mother and she was immediately taken to the Zonal Hospital. In the Hospital, she made a statement to the ASI Gurdas Ram to the effect that she had been raped by Mauzi son of Soma and on this basis, FIR under Sections 376 and 309 was registered. Unfortunately, the prosecutrix died on the night intervening 12/13.9.1993 and, therefore, the case was converted to one under Section 376 read with Section 306. Post mortem of the body of the deceased was conducted. It was found that she had died due to Asphyxia caused by aluminium phosphide poisoning. 3. During the investigation, the police found that accused No.2 Babloo aided and abetted the accused Mauzi. It was alleged that Babloo had been standing as a guard to keep a watch and was to give a signal to warn Mauzi in case anyone came towards the bauri side. Both the accused were arrested. On completion of investigation, they were charged with having committed the offences aforesaid. During the course of the trial itself, the public prosecutor fairly stated before the learned Trial Court that there is no evidence against Babloo. This was accepted by the learned Trial Court. Surprisingly however, the appeal has been filed against him also. The learned trial court after going through the entire evidence has discarded the dying declaration as being totally unreliable. He has also come to the conclusion that there is no evidence worth the name to show that the deceased was actually raped and he has also held that the prosecution miserably failed to prove that the accused Kishori Lal son of Shyam Lal is the person Mauzi son of Soma referred to in the dying declaration. 4. As far as the dying declaration is concerned, it would be pertinent to mention here that as per Ex.PA Dr.Naresh Gupta informed the SHO, Police Station, Dharamshala that a case of suspected poisoning has been admitted in the hospital at 2.15 p.m. on 12.9.1993. The Investigating Officer ASI Gurdas Ram went to the hospital and moved an application to the M.O to give his opinion whether the injured person was in a fit condition to make a statement or not. In the same document, an endorsement has been given by Dr.Gupta at Ex.PB/1 wherein it is written ‘patient is fit to give statement’. It is important to note that the doctor first wrote the word ‘unfit’ then scored it off and replaced it with the word ‘fit’. The MLC prepared by Dr.Naresh Gupta is Ex.PC. Dr.Naresh Gupta was examined as PW/1. While appearing in the witness box he clearly stated that on examination the patient was semi conscious but attempted to respond to verbal commands. She was responding to painful stimuli. B.P was not recordable. Pulse was very feeble, 124 per minute, respiratory rate 30 per minute, pupils were normal in size, responding sluggishly to light. In cross-examination, this witness has stated as follows:- “She never regained full conciousness and she remained in the condition she was admitted, rather she was sinking and her condition worsened. The police recording the statement of the deceased immediately after having obtainedmy endorsement Ex.PB/1.” 5. There is nothing on record to show that the patient ever improved. If she did not improve, the question of making the dying declaration and that too in a detailed narrative form did not arise. It is also apparent that police officials made no effort whatsoever to associate a Magistrate with the recording of the dying declaration. This may not be necessary in every case but in the present case, the dying declaration was recorded in the hospital at Dharamshala and judicial notice can be taken of the fact that even the residences of the Magistrates are close to the hospital. 6. The statement was allegedly recorded at 3.25 p.m.and MLC Ex.PC was prepared on 2.15 p.m. Some time must have been taken for the examination of the patient and thereafter only the MLC could have been prepared. There is no evidence to show that during this short span of time, the condition of the prosecutrix improved sufficiently so that she could be fit for making the statement. Dr.Naresh Gupta PW/1 does not say a word as to why or in what circumstances, the word “unfit” was scored off and substituted by the word “fit”. 7. As far as Gurdas Ram PW/2 is concerned, he admits that initially the doctor had written the word ‘unfit’ and later the word was scored off and changed by the word ‘fit’. However, he denies that this substitution was carried by PW/1 in his presence. Therefore, there is no explanation about this cutting which casts a dark shadow of doubt on the prosecution case. 8. There is no evidence on record to show that the deceased was subjected to rape. The clothes and underwear of the deceased did not contain stains of semen or blood. The pubic hair and vaginal smear of the deceased also did not contain seminal stains. PW/6 Dr.Swami who conducted the post-mortem examination has clearly ruled out the possibility of deceased having been subjected to sexual intercourse. After the alleged statement of the prosecutrix was recorded, she was examined by PW3 doctor Mrs.Sood. This witness states that the possibility of rape cannot be ruled out but there is no positive finding by her that the deceased had actually been raped. There is no injury on the body and there was only an old tear of the hymen. All these facts rule out the possibility of rape. 9. Even if the statement Ex.PE is believed, according to the prosecutrix she was raped by one Mauzi son of Soma but no convincing evidence has been led by the prosecution to show that the accused Kishori Lal son of Shyam Lal is also known by the name of Mauzi or that his father is known by the name Soma. Only PW/7 Smt.Shimlo mother of the deceased has stated that name of Kishori Lal accused was told to her by the Up Pardhan. It is apparent that she herself did not know that Mauzi and Kishori are one and the same person. The Up Pardhan has not been examined. This is also a glaring lacunae in the case. 10. In view of the above discussion, we find no reason to interfere in the judgement of the learned Trial Court. The appeal being without merit is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. (V.K.Ahuja) April 10, 2009 Judge (m)