1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 275 of 1999 Decided on August 3, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Yash Paul ...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. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Ajay Sharma, Advocate, with Mr. Ban Bhushan Singh, Advocate. Justice R.B. Misra,J. (Oral) 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 in reference to judgment dated 1.2.1999, passed by Learned Sessions Judge, Una, District Una H.P., in Criminal Appeal No.17/1996, acquitting the accused-respondent, under Section 377 of the Indian Penal Code. 2. The case of the prosecution is that the victim, aged about 8 years son of Gurbachhan Singh and grand son of Nagahiya Ram, on 15.9.1991 had gone to jungle for grazing goats and other live stocks. The victim ( name not given), PW.2 was accompanying Nagahiya Ram, who strolled in the jungle for the purpose of collecting fuel wood leaving behind the victim 2 alone. At about 5.00 P.M., when accused-respondent Yash Paul, said to have arrived there, he asked the victim to accompany him for the purpose of gathering fuel wood. The victim followed the accused-respondent and when they reached near the Banyan tree, the accused-respondent laid the victim upside down and took out his underwear and committed carnal intercourse, whereupon, the victim cried out of pain. At that time, accused-respondent gagged the mouth of the victim with 'Parna'. In the mean while, Nagahiya Ram, reached there and on seeing him, the accused-respondent ran away. The matter was reported to the police on 16.9.1991, on the basis of which FIR No. 66/91 was registered and accused was charged for the offence under Section 377 of the Indian Penal Code. 3. The case was tried as Criminal Case No. 12-II-1993 by the Chief Judicial Magistrate, Una, in reference to FIR No. 66/91. In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses. The Chief Judicial Magistrate, on 29.8.1996, held the accused-respondent guilty of the offence under section 377 of the Indian Penal Code and accordingly sentenced to undergo simple imprisonment for one year and fined Rs. 500/- and in default of payment of fine, he was to also undergo simple imprisonment for a period of one month more. 4. Being aggrieved by the order dated 29.8.1996, in Criminal Case No. 12-II-1993, the accused-respondent (respondent herein) preferred Criminal Appeal No. 17/1996. After adjudication of the said criminal appeal, learned Sessions 3 Judge, Una, vide its order dated 1.2.1999, has set aside the order dated 19.8.1996 of the Chief Judicial Magistrate, acquitting the accused-respondent for the offence under Section 377 of the Indian Penal Code. 5. On scrutinizing the prosecution witnesses, we notice that PW.1 Dr. Ravi Kant Behal examined the victim and has observed as follows:- 1. He had difficulty in walking. He was walking with both legs apart . 2. There was no abrasion on the skin near his anus skin around the anus was covered with fecal matter and mud. 3. No blood was found present around his anus, premium, thighs or clothes. 4. There was no external mark of injury present on his body. 5. No laceration was seen inside his rectum. However, his underwear swab taken from around his anus together with the swab taken from his rectum was sent for chemical examination. 6. As per medical examination, PW.1 Dr. Ravi Kant Behal has given his opinion that possibility of unnatural sexual intercourse having been committed on the victim cannot be ruled out. PW.1 has also examined the accused-respondent and has found him capable of having sexual intercourse and fit to do so. PW.1 has further given an opinion which is as follows:- “It is not necessary that subject to sodomy for the first time the victim is likely to suffer on his anus and rectum. It is also correct to suggest that I did not observe any lubricant in or around the anus and rectum of the victim. It is incorrect to suggest that injuries are likely to be caused in or around the anus and rectum in case no 4 lubricant is applied. Possibility of the victim having cleaned his anus with mud after defecating cannot cannot be ruled out. It is incorrect to suggest that cleaning of himself by the victim with mud was responsible for his walking with legs apart”. 7. PW.2 the victim was aged about 8 years when he was subjected to carnal intercourse by the accused-respondent. In his statement Ex. PW.2/A, on the basis of which FIR was registered, the victim has stated that the accused-respondent has asked him to accompany him for the purpose of collecting fuel wood. But statement to that effect incorporated in Ex. PW.2/A is missing from the statement of the victim. PW.2 has contradicted his statement by deposing that he had been forcibly lifted by the accused-respondent and was carried beneath a Banyan tree. This fact is contrary to the statement embodied in Ex. PW.2/A, wherein he had deposed that when alongwith the accused-respondent he was strolling in the jungle and had reached near the Banyan tree, then the accused- respondent laid him upside down on the ground . Besides this, in Ex. PW.2/A the victim has stated that Parna Ex.P2 was being carried by the accused-respondent belonging to him. 8. The deviation made by the victim in his deposition, makes his statement risky to be relied upon. The victim is a child witness. However, he has no opinion of his own. He could not even aware of the gravity as what he has stated, it could be only at the behest of his grand father and other relatives he could have stated as above. The Parna Ex.P2 has not been 5 recovered from the possession of the accused-respondent. The Parna was given to the police by the victim vide memo Ex. PW.5/A in presence of Ram Dass (PW.5) and Constable Charan Dass No. 256 (PW.9). 9. If in view of the testimony of PW.2, the Parna Ex. P2 was belonging to him then under what circumstances, Parna came into the possession of the accused-respondent Yash Pal. The victim has not stated anywhere that the Parna had been taken by the accused-respondent when he ran away from the spot. In Ex. PW.2/A the victim has stated that he had narrated the incident to his mother and grand father. But the said deposition in Ex. PW.2/A is contradicted by Smt. Krishna Devi (PW.3) mother of the victim , who has stated that she was at her house. When she went to the jungle the accused-respondent was not there and Smt. Krishna Devi (PW.3 ) was told by the victim that the accused-respondent has assaulted by way of carnal intercourse to him. 10. PW.4 Nagahiya Ram, who was said to be accompanying the victim in jungle in the said day of occurrence had however, through his testimony indicated that he has not seen the accused-respondent in the act of doing and assaulting the victim by way of carnal intercourse. PW.4 has further stated that the victim was weeping, for that reason PW.4 went near the tree from where the accused-respondent ran away. The testimony of PW.4 also does not inspire confidence. From the testimony of PW.4 it reveals that when he observed the victim lying on the ground, PW.4 was not able to take him up 6 and made him to stand, therefore, he went to Krishna devi (mother of the victim and daughter-in-law of PW.4) in the village and when PW.3 came to the jungle, she took up the victim to the house. From the testimony of PW.3 it reveals that being mother of the victim, she went to the jungle and did notice the presence of the accused-respondent. However, took her son i.e. the victim to her house, such statement is also contradictory regarding lifting of the victim. 11. PW.7 Head Constable Ashok Kumar had given one cotton underwear to Constable Rajinder Singh (PW.8) on 27.11.1991, who took the same to Forensic Science Laboratory, Shimla. No stains of blood or semen were found on the rectum swab. No stains of blood or semen have been found on the underwear of the accused-respondent. However, on the underwear of the victim, human blood and semen stains were detected. The statements of PW.7 and PW.8 as well as the report of the chemical examiner do not establish that the victim (PW.2) has been subjected to carnal intercourse. PW.10 has prepared the final report. PW.11 ASI Amar Singh investigated the case by preparing the site plan and got the victim as well as the accused-respondent medically examined. 12. From the perusal of statement of PW.11, it does not reveal that PW.2 had been subjected to carnal intercourse by the accused-respondent or anybody else. PW.1 Dr. Ravi Kant Behal has also failed to opine with certainty and categorically that the victim has been subjected to carnal intercourse. PW.1 has simply opined that possibility of unnatural sexual intercourse 7 on the victim cannot be ruled out. On examination of the accused-respondent, PW.1 also did not find any symptom on the person of the accused-respondent which could definitely be said that he has indulged in carnal intercourse on 15.9.1991 or before that. PW.1 has simply opined that the accused- respondent was capable of doing sexual intercourse. The medical examination of the victim as well as the accused- respondent does not establish that the victim has been subjected to carnal intercourse by the accused-respondent. 13. Mr. Rajinder Dogra, learned Additional Advocate General has submitted that the testimony of PW.2 has been made in natural course and despite the fact that he is a child, his testimony cannot be disbelieved, as PW.4 has seen the accused- respondent fleeing away from the spot and in view of the testimony of PW.4, he could not lift the victim (PW.2), from the ground, therefore, he informed the mother of the victim. But there is no iota of evidence that there was an occasion of animosity in the family of the victim as well as the accused- respondent. Mr. Dogra also tried to impress that there could not be any ill-motive to falsely implicate the accused-respondent without any basis, since in view of PW.1, the victim (PW.2) could have subjected to carnal intercourse, as such, testimony of PW.2 cannot be disbelieved. 14. On the other hand, Mr. Ajay Sharma, learned counsel for the accused-respondent has referred a decision of High Court in Ganpat Versus Emperor, AIR 1918, Lahore 322 (2), where the High Court has observed in reference to offence 8 under Section 377 of the Indian Penal Code that uncorroborated evidence of the victim is not sufficient unless his evidence deserves special weight. For this purpose Mr. Sharma has made the following submissions while relying upon the paragraph 2 of the above mentioned judgment, which is as below:- “2. Further is an important discrepancy as to where the boy went after the commission of the offence. He says in Court that he was first taken by the witnesses to the well and that in the evening (not the morning, as stated by the learned Sessions Judge in his judgment) he was taken by the accused and Mehra to Shamkot and stayed the night with the accused. But in the report at Thana what he said was that after the accused had run away he returned to his well, and Ganpat's brother Babu kept him there for the night. From this discrepancy alone it would appear that Muhamda is not an entirely straightforward witness. He has not satisfactorily explained why after Sulla and Yaru had come up and the accused had run away, he did not go straight to his father and complain to him. In my opinion, therefore, implicit reliance cannot be placed on Muhamda's evidence, and Ganpat should not be convicted thereon. I accept the application, set aside the conviction and sentence, and acquit Ganpat and direct that he be set at liberty and the fine, if paid, be refunded.” 15. In view of the observation made in Panchhi versus State of U.P., AIR 1998, Supreme Court 2276, the evidence of a child witness is to be evaluated more carefully and with greater circumspection. Reliance has been made on paragraph 11, 9 which is quoted as below:- “11. .....But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring”. 16. In view of the observations in State of U.P. Versus Ashok Dixit and another, AIR 2000 Supreme Court 1066, the discrepancies and omissions in statement of one of the eye witness, and in view of uncorroborated evidence of the statement of a child witness with other reliable witnesses, the testimony of a child witness cannot be believed. 17. We have gone through the contents of the order dated 29.8.1996 passed by the Chief Judicial Magistrate in criminal case No. 12-II-1993 and the impugned appellate order dated 1.2.1999, passed by the learned Sessions Judge, Una, in criminal appeal No. 17/1996 and have also scrutinized the prosecution witnesses as well as material on record, we notice that in the facts and circumstances there are apparent inconsistencies in the testimony of a child witness (PW.2) and there is apparent contradiction in the statements of PW.3 and PW.4 regarding lifting of the victim (PW.2). There is also apparent contradiction regarding the testimonies of PW.3 and PW.4 as to arrival of PW.3 in the jungle. In view of the 10 contradiction in ocular evidence as well as in medical evidence indicated by PW.1, the prosecution case becomes doubtful. 18. In the present case, none of the prosecution witnesses, has seen the incident of sexual assault by way of carnal intercourse on the victim by the accused-respondent except the testimony of PW.2, a child witness. In our considered view a child witness in the facts and circumstances, is not reliable as his testimony is not corroborated by any of the prosecution witnesses. More so, other prosecution witnesses e.g. PW.3, PW.4 and other are incoherent and were contradictory on severals aspects. Despite the fact that there was no occasion of animosity between the families of the victim and the accused-respondent. However, the sole testimony of the victim is not inspiring confidence, therefore, cannot be relied upon, as such, the prosecution cannot be said to have proved its case beyond reasonable doubts. If two possibilities are emanating about the incident, then benefit of doubt has tobe given to the accused-respondent. 19. If definite affirmative conclusion has not been indicated by the medical expert and the ocular evidences were contradictory, in such condition, benefit of doubt has tobe given to the accused. 20. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings 11 given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 21. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge August 3, 2010 (V.K. Sharma) (Purohit) Judge