IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 116 of 1993 Date of decision: 3.03.2008 State of Himachal Pradesh ... Appellant Versus Mata Ram … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Pranay Kumar Sharma, Additional Advocate General. For the respondent: Mr. N.K. Sood, Advocate. V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sessions Judge, Sirmour District at Nahan, dated 1.12.1992, vide which the respondent was acquitted of the charge framed against him under Sections 376/506 I.P.C. Briefly stated the facts of the case are that on the night intervening 7th and 8th March, 1991 Gita Ram husband of Smt. Kaushalya Devi, prosecutrix, had gone to attend some marriage in a village, while 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. his wife and four minor children were present in the house. Around 12 in the night, the door of the house of prosecutrix was knocked by some person and she thought that her husband had come back. She switched on the light and opened the door and asked as to who was there. Suddenly a man appeared at her door and caught hold of her by her wrist and pulled her and Smt. Kaushalya Devi resisted the use of force by the person who was a stranger. The said person threw her on the ground, dragged her through her courtyard into a nearby field and to save herself, prosecutrix picked up a stone lying in the field and hit it on the head of the person and the blood started oozing out. The said person pressed neck of the prosecutrix which made her immobile and the said person raped her. She raised an alarm and her eldest son Sunil Kumar aged about 9 years rushed to the place where the husband of the prosecutrix had gone to attend the marriage, called his father who came there accompanied by one Komal Datt. The prosecutrix was lying naked in the field and they brought her to the house. A bag containing a torch and a muffler of the man was found lying on a box inside the room. The report was not lodged immediately since the prosecutrix alleged that she was under a fear and the said person had given a threat. On the 4th/5th day of the incident, the brother visited her house and asked her to lodge the report. They went to lodge the report but the Superintendent of Police was not there and thereafter, on the next day 13.3.1991, the report was lodged with the police. The case was registered and the challan after investigation was filed before the Court of learned Chief Judicial Magistrate who committed the case to the learned trial Court who tried the respondent leading to the acquittal of the respondent. Heard. The main submissions made by the learned Additional Advocate General for the State were that the learned trial Court had held that it stands established that the rape was committed but had held that since the identity of the respondent was not established beyond any reasonable doubt and as such, the respondent was acquitted of the charge framed against him. It was submitted that those findings of the learned trial Court in regard to identity of the accused can be said to be perverse since the identity of the accused was established on the basis of the evidence led before the trial Court. Coming to the findings of learned trial Court it had observed that it is doubtful to hold that it was the accused who raped the prosecutrix. The prosecutrix as PW-10 has clearly stated that she was not knowing the accused prior to the occurrence. However, she is clear that she switched on the light, then opened the door and had, therefore, seen the accused at the time of occurrence. She denied her knowledge that in case the accused was working as mason or to which village he belongs. She stated that she was dragged for a distance of 20 feet from her house and she cried during this period to save herself. No other person had seen the accused except the prosecutrix, since her son aged about 9 years at that time who was examined as PW-11 had stated that on hearing the cries of his mother and on her asking to call his father, he went to call his father. He did not state that he made attempts to save his mother or saw the accused at that time. It was submitted by the learned counsel for the respondent during the course of the arguments that it looks unnatural that no attempts were firstly made to save his mother but he went to call his father from a distant place. The first reaction could have been to save his mother but there is nothing in this regard. The accused had disappeared from the scene before the prosecutrix’s husband and other persons came to the spot and, therefore, it is the prosecutrix herself who could say about the accused, his identity or his features. In such circumstances when the identity of the accused was not known, it has to be seen as to how the police apprehended the accused and arrested him in the case. Coming to the testimony of PW-17 Ahmad Saiyad, S.H.O. He stated that it had come to his knowledge that the fact that the assailant was Mata Ram who was known to the PWs on 10.3.1991. In case she said the name of accused Mata Ram or his particulars or his identity or the facts about his identity were known on 10.3.1991 it should have been mentioned by the prosecutrix in her F.I.R. which was lodged on 13.3.1991, but this is not so. A perusal of F.I.R. Ext.PL shows that there is no mention that it had been learnt from the witnesses that the assailant was the accused. She simply stated that she can identify the said person if he is brought before her which clearly shows that she had not learnt about any particulars about the accused till she lodged the report on 13.3.1991 i.e. after 5 days of the occurrence. Coming to the further statement of PW-17 Ahmad Saiyad, Investigating Officer, he had stated that he had sent a constable in search of the accused and when he was present in the area alongwith witnesses on 15th, they had pointed out towards the accused. He did not state that he arrested the accused on suspicion since he was having a head injury with which he was identified or his identity had been learnt from the witnesses. In regard to the identification parade conducted on 2.4.1991, identification report has been proved from the statement of PW-6 Shri R.K. Sharma. The said report does not establish the identity of the respondent since it has come up in the statement of PW-2 Dr. R.M. Gupta, Dental Surgeon that on 16.3.1991 accused Mata Ram was referred to him. He prepared a mold of his teeth impression and tried to compare it with the mark on the cheek of Kaushalya Devi, but it did not tally. Moreover, he clearly stated that when the accused was brought to him on 16.3.1991 Kaushalya Devi was present on that day which shows that she had an opportunity to see the accused on that day. The articles allegedly recovered i.e. muffler and keys etc. were not connected with the accused in any way to hold that these articles belonged to the accused. There is no evidence to this effect. In regard to the human semen found on the clothes of prosecutrix, it was pointed out that there is statement of PW-1 Dr. Divya Sharma who examined the prosecutrix on 13.3.1991 that the prosecutrix had stated in the history of the case that she had intercourse with her husband two days after the incident and, therefore, the findings that there was human semen on the clothes of the prosecutrix does not establish that it was from the lions of accused or her husband. The learned counsel also commented upon the behaviour of the prosecutrix having intercourse with her husband after two days of the incident but no comments can be made in this behalf since behaviour differs from man to man in different circumstances. Apart from the above, it has been observed by the learned trial Court that the prosecutrix had come to know that brother of a lady named Nirmala Devi who live in the adjoining had visited her place who was having a wound on his head and had asked to wash her clothes. It was mentioned by the learned trial Court that the report was lodged after six days which does not find any reference that it was learnt that assailant had come with a bleeding wound on his head on the night of occurrence. In case this fact had come to the knowledge of the prosecutrix she would have been certainly mentioned about this fact that it was brother of Nirmala Devi who had visited her house but the F.I.R. does not suggest that any such thing was mentioned in the said report which makes the version of the prosecutrix doubtful in regard to the identity. Coming to the reasonings given by the learned trial Court in acquitting the respondent, the findings given by the learned Sessions Judge on the basis of the evidence cannot be said to be perverse calling for an interference by this Court and those findings by the learned Sessions Judge acquitting the respondent of the charge framed against him do not call for an interference by this Court and as such, there is no merit in the appeal filed by the appellant, which deserves to be dismissed and the same is dismissed accordingly. Bail bonds furnished by the respondent are discharged. ( V.K. Ahuja ), Judge ( Surinder Singh ) March 3, 2008 Judge (BSS)