1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A.No.58 of 1997 Date of decision 24.6.2010 State of H.P. … Appellant Versus Om Parkash …Respondents Coram: The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr.Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr.Anil Jaswal, Dy AG. For the respondent: Mr. V.D. Khidtta, Advocate. R.B. Misra, J (Oral) Heard learned counsel for the parties. Mr. V.K. Khidtta, Advocate, who by virtue of being appointed as counsel for legal aid, has assisted this court. 2. 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 the judgment dated 4.10.1996 passed by the Learned Sessions Judge, Kangra at Dharamshala in Sessions trial No. 6 of 1996 under Section 363/376 IPC thereby acquitting the alleged accused/respondent. 3. In order to adjudicate the present appeal, it is necessary to give the factual background of the case that on 13.12.1994 at about 4 PM victim-prosecutrix was allured by the accused. He took the prosecutrix to nearby bushes (near Tea 1 Whether reporter of local papers are allowed to see the judgment ? 2 Garden) and committed rape upon her and thereafter the accused fled away from the scene. One boy Dinkar, who was playing in the street along with other inmates near Saint Paul’s school, on the said date i.e. 13.12.1994, saw the accused running by the side of place, where they were playing. They heard the sound of the girl. Then one Utra Thakur also heard the sound of girl form the bushes near Tea Garden. The girl was weeping, Utra Thakur, Yojna Devi along with Kamudini Sod brought the girl near the house. Uttra Thakur found that the girl was bleeding and she apprehended that girl has been subjected to sexual intercourse. Parents of the girl were not at home. However, the grand father was at house and girl was handed over to him. On1.8.1995 the accused was apprehended in another rape case at Mohalkad forest near Rajpur Tanda (Palampur) upon Kumari Jeena, by the local people. When he was being taken to police station along with prosecutrix Jeena, then he confessed before Kuldip Kumar, PW9 that he had also committed sexual intercourse with victim prosecutrix On this the FIR was registered. Prior to the arrest of accused on 1.8.1995, Victim-prosecutrix was medically examined on 15.12.1994 and her clothes were taken into possession by the police. The police had also recorded the statement of witnesses after detection of this crime in 1995. The clothes were sent to the Chemical Examiner and after receipt of the report and after completion of investigation the challan was filed against the accused. 4. In order to prove its case, the prosecution examined as many as 16 prosecution witnesses. Whereas, all the accused/respondent has denied the prosecution case. 3 5. PW-1 Dr. Sushma Sood, Medical Officer, conducted medical examination on 15.12.1994 to the victim/prosecutrix in reference to sexual assault on her on 13.12.1994 at about 4 PM and on examination, it was found that Hymen was torned completely. Margins were red. Fourchette was torn. Marked redness and tenderness present around the introitus. Bleeding was present from inside vagina and from perineal wound also. Hymen admits one little finger with difficulty. Per Vaginal examination. Not possible. Advised X-ray for confirmation of age. Probable duration was within 48 hours. Ex. PW-1/A is the original medical certificate. It bears my signature and it is in my hand. Sagun is the same girl today present in the court, whom I have medically examined on the aforesaid date. In my opinion, the prosecutrix was subjected to rape. 6. In cross examination, PW-1 has also suggested that the injuries found on the person of the prosecutrix were possible if she fells on a fixed sharp object. However, after receiving chemical examiner’s report, PW-1 in her cross examination has opined that such injuries inflicted on the delicate part of the victim was not possible. 7. PW-2 Dr. K.C. Kalyan examined the accused Om Parkash on 1.8.1995 in some other criminal case in which he was convicted and found that all the injuries suffered by the accused were simple and these can be caused by way of all and by giving beatings. 8. PW-3, victim-prosecutrix was said to be studying in DAV School, Palampur in third standard, who stated that one of teachers of her school was Ms. Shashi Verma. She further stated 4 that she has three brother and sisters and did not know the sanctity of oath by virtue of being tender age as she was not capable of understanding her good or bad. Therefore, the learned Sessions Judge did not examine the PW-3 9. PW-4,Dinkar had stated that he was studying in St.Paul Secondary School in sixth class and had stated that in between 3.30 or 4 PM about one years and 9 month back, he along with one boy and a girl was playing in the street near the Church. While playing, their ball went downward in the kitchen garden. Further that another boy who was playing with him was asked to bring the ball. In the meanwhile one person came there. PW-4 has further stated he asked the boy to come up and leave the ball there. The boy passed running from there. The man who had run from there was wearing one brown strips sweater and black pant. PW-4 asked the boy the cause of running, he did not answer anything. He acknowledge accused who was sitting in the court and had also stated that the accused was the same who ran from there, when they were playing in the street on 13.12.1994. PW-4 has further stated that the accused was wearing at the time the pant Ext P1 and Shirt Ex P-2. He further stated that he heard a weeping sound of a girl, who was saying uncle Bachao, uncle Bachao. The girl was in the bushes. The girl was weeping at a distance of 60 to 70 feets from them in the bushes. PW-4 has further stated that he called his mother and Bua and apprized them about the weeping of a girl in the bushes. Mother and Bua brought the girl upward. PW-4 has further stated that he noticed the blood which was oozing out from the private part of the girl. 5 10. In cross examination, PW-4 has stated that there were five houses near the place where PW-4 was playing and there were forest and bushes nearby PW-4 in his cross examination has further stated that his mother telephoned the police on the same day in the evening and police on coming. His clothes were shown to PW-4. Further that subsequently when the accused was apprehended by the police, he was shown to PW-4 and PW-4 identified him as the person who he had seen running. PW-4 has further stated in the cross examination that he has come to the court with his mother and Bua and he was tortured by the police. Further stated that the statement given in the court is the same statement which PW-4 has stated before the police. 11. PW-5 Smt Uttra Thakur stated that his son Dinkar PW-4 was playing on 13.12.1994 in the street near Church. PW-5 along Smt. Yojna Devi and Kumaduni Sood was standing the law of house of PW-5. PW-5 heard the sound of a girl from the forest near the Tea garden, thought the girl must be weeping from the fear of a leopard. All three were went to see the girl, who was seeping. Then the girl was brought to near her house and observed that there was blood on the hand of the girl. Dinkar disclosed PW-5 that he was one person running. Since the parents of the girl was not in the house, therefore, the victim was handed over to the grand father. PW-5 reported the matter. Police recorded the statement of PW-5. 12. PW-6 Roopa Devi stated that victim-prosecutrix is her daughter. When PW-6 returned to her house, she found that her daughter was bleeding and on asking she told that when she was playing in the street, one boy came to her and asked her to accompany him in order to hand over some letter to a girl. On 6 this pretext, victim accompanied the boy. According to PW-6, victim also disclosed to her that the boy who took her to hand over a letter, at some distance took her in the lap and committed the sexual act with her by opening his pant and her undergarment. The matter was reported to the police and FIR was registered which is Ext PW-6/B. After about one or two days of the alleged occurrence, PW-6 handed over the clothes of the girl to the police after washing the same. 13. PW-6 in her cross examination that her quarter is about 30 steps from the Church though the police station is one Km away from her house. However on the same day, matter was not reported to the police. 14. PW-7 Balwant Singh has stated that initially he was associated in the investigation of the present case by the police. The accused was interrogated by the police in his presence. The accused made the disclosure statement that he committed rate with the prosecutrix. Statement of the accused is Ex PW-7/A. In pursuance of the disclosure statement, the accused led by the police party to the place of incident, where the prosecutrix was subjected to rape. 15. PW-8 is Ms. P. Goldsmith, principal of the school has stated that the date of birth of victim prosecutrix is 23.6.1988. 16. PW-9 Kuldip Kumar, an independent witness has stated that on 1.8.1995 he was standing outside the petrol pump at Palampur, the accused was apprehended when he heard the sound of girl from bushes, then the prosecutrix and accused in the earlier case were brought there and on the way when he was being taken to police station, the accused disclosed that he had 7 also committed sexual assault with one girl of Saint Paul’s High School. 17. PW-9 in his cross examination has stated that in earlier case of the same offence he was the witness and the accused disclosed earlier incident by the side of Khud when he was apprehended.. 18. PW-10, Partap Chand, who is said to have been associated with investigation, divulged that the accused was interrogated in his presence. While being interrogated in his presence, accused disclosed that he had hidden his shirt and pant in the Bohar of his house. As per the disclosure statement Ext PW-10/A, police party got recovered pant Ext P1 and shirt Ext P-2 which were taken in possession vide memo Ext PW- 10/B. 19. PW-11 is Sanjeev Kumar No.804, Police Station, Palampur. PW-12 is HC Manohar Lal No.34, Police Station, Palampur. 20. PW-13 Inspector Narayan Singh has stated that he arrested the accused and recorded the statements of Kuldip, Sham Sunder, Rup Lal and Sushil Kumar, 21. PW-14, Inspector Gulab Singh has stated that he was posted at the relevant time as SHO, PS, Palampur. On receiving telephone on 13.12.1994, he immediately went to the spot and found that girl had been removed to hospital and mother of the prosecutrix was contacted on 13.12.1994, wherein she showed her unwillingness to register the case as the daughter is too minor. On 14.12.1994, PW-14 again went to the house of prosecutrix and recorded Rukka Ex PW-6/A, on the basis of which FIR Ex PW-6/B was registered. PW-14 has further stated 8 that he prepared the spot map Ext PW-14/A. The girl was taken for X ray examination. Thereafter mother of the prosecutrix handed over Pajami P-3, Sweater P4 and which were taken into possession vide memo Ext PW-6/B-1. PW-14 gathered from the statement of witnesses that the boy who committed rape was black coloured, having long hair wearing black pant and a sweater having strips. However, he tried to locate the culprit but could not locate him despite best efforts. 22. PW-15 is Sant Ram, retired Sub Inspector at the relevant time has played a usual role and according given to his version in reference to the prosecution case. However, he stated that he prepared the spot map and on 11.8.1995, accused made another disclosure statement Ext PW-9/A that he had hidden his shirt and pant in the Bohar of his house. In pursuance to the said statement, accused led the police to his house and got recovered his shirt P2 and Pant P-1 which were taken into possession vide Memo Ext PW-9/B. 23. PW-16, Inspector Kishan Chand stated that on receipt of chemical examiner’s report Ext PX, he prepared thechallan and filed the same in the court. 24. On close scrutiny of the prosecution witnesses, we find that the victim-prosecutrix was sexually assaulted and there was injury on the private part of the body and in the opinion of PW-1, victim-prosecutrix was subjected to sexual assault and accused on being apprehended in another case after about nine months was examined medically on 1.8.1996 and injuries on his person were noticed by PW-2 Dr. K.C. Kalyan. However, PW-3, victim-prosecutrix on the ground that she was not able to 9 understand the sanctity of oath and was not capable of understanding good or bad, was not examined. 25. We also notice that none of the prosecution witness has seen the occurrence and only on the basis of testimony of PW-4 it could be gathered that one boy who came out of the bushes bearing pant and brown strip sweater and black pant was seen on a fateful and at that time the injury was found on the private part of the victim-prosecutrix and the blood was found to be oozing from the private part of the body of the girl. However, PW-4 too was minor though was playing with victim- prosecutrix and was on the spot, however, has recognized the respondent accused in the court, but has stated in the corss examination innocently that he was tortured by the police. Besides PW-4, none was present on the spot. PW-5 Uttra Thakur, in her cross examination has stated that she has not seen the accused running on that alleged day and was not in a position to divulge her testimony about the identity of accused. Right from the date of incident, i.e. 13.12.1994 after the trial no endeavour was made to make an identification parade so that the prosecution witness including PW-4 and victim-prosecutrix could be associated for acknowledging the accused so much so the victim prosecutrix being minor was sexually assaulted, was not examined only on the pretext that she was not able to acknowledge the sanctity of oath. If the prosecution has failed in its statutory duty of arranging identification parade, learned Sessions court cannot be said to be careful and conscious enough at least bother to examine the victim prosecutrix and to derive something substantial in support of the prosecution case for getting the true story revealed from the victim prosecutrix. 10 26. In case of sexual assault to the minor, statement of the minor victim prosecutrix could be treated sufficient to prove the prosecution case provided the victim- prosecutrix was in a position go give true statement and her statement alone was liable inspiring confidence , but here the minor victim prosecutrix was not examined. As such, the true story gathered from the testimony of PW-4 and PW-5 was to be corroborated and a complete chain of reliability was to be completed in view of the circumstantial evidence and by properly acknowledging the accused by arranging identification parade timely. 27. PW-4 is a minor though he has supported the prosecution case, but statement of PW-4 alone is not sufficient to prove the prosecution case when PW-4 innocently stated in his cross examination that he had been tortured by the police. The disclosure statement of accused, when he was apprehended in some other criminal case, is also not sufficient to bring home to the guilt of the accused. The injuries detected in the chemical examination by PW-2 Dr. K.C.Kalyan on the body of the accused was also not conclusive to correlate the same with the incident of 13.12.1994. 28. On care scrutiny of the prosecution witnesses and material on record, we are of the considered view that the prosecution for lack of proper care and caution on their part could not done identification parade and by non-examination of victim- prosecutrix has utterly failed to prove its case beyond reasonable doubt. 11 29. In our considered view, learned Sessions Judge cannot be said to have wrongly arrived at the conclusion. Therefore, the appeal fails and is accordingly dismissed. Bail bonds furnished stand discharged. ( R.B.Misra ), J. ( V.K. Sharma).J 24th June, 2010 (sl)