IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 16 of 2008 Judgment reserved on: 2.9.2009 Decided on : 8.9.2009 Rama Nand Gandwal …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. M.S. Chandel, Senior Advocate with Mr. Rakesh Jaswal and Mr. N.S. Chandel, Advocates. For the Respondent: Mr. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge Appellant is aggrieved by the judgment, dated 31.12.2007 of learned Sessions Court, Chamba, whereby he has been convicted of offences, under Sections 376 and 506 IPC, and sentenced to undergo simple imprisonment for ten years and to pay a fine of Rs.20,000/-; in default of payment of fine to undergo simple imprisonment for a further period of two years, for offence under Section 376 IPC and to undergo simple imprisonment for seven years for offence, under Section 506 IPC. So, he has filed the present appeal. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Prosecution case, which led to the trial and conviction of the appellant, for the aforesaid offences, may be summed up thus. Appellant was posted as Principal in Government Senior Secondary School, Bhanjraru (Tissa), sometime in the year 2001. Prosecutrix was a student of that school. It appears that she took middle standard examination, held in February-March, 2003. She got compartment in Mathematics. She appeared for the examination of Mathematics, to clear the compartment, in September, 2003. Appellant allegedly enabled her to get through the examination, by helping her solve some mathematics problems, during the course of such examination. He then became friendly with the prosecutrix and took her telephone number. 3. On 30th May, 2004, appellant made a telephonic call to the prosecutrix, at 4 p.m., at her residence in village Salancha and asked her to reach the school to learn karate. So, she went to the school and reached there at 4.30 p.m. At that time, PW-4 Mohinder Singh, Peon, and a teacher, named PW-5 Om Prakash, were there. Appellant was present in his office. Prosecutrix went to his office and met him. He asked the prosecutrix (PW-1 – name withheld) to visit him at his residence at 8 p.m. Appellant then went to his house. Prosecutrix passed her time in the school and went to Principal’s residence accompanied by PW-4 Mohinder Singh, late in the evening. Appellant was present in his house. Thereafter, the appellant, the prosecutrix and PW-4 Mohinder …3… Singh took their meals. PW-4 Mohinder Singh left the house of the appellant. Appellant then consumed liquor and committed sexual intercourse with the prosecutrix, without her consent and against her will, despite resistance, thrice in the course of the night. He threatened the prosecutrix that in case she told anybody about the incident, she would be done to death. He also allured her that he would help her pass Plus Two examination and to get admitted to JBT course, as he was likely to become Chairman of the Himachal Pradesh Board of School Education, shortly. Next morning, the prosecutrix went back home. She did not narrate the incident to anybody. 4. On 16th June, 2004, her cousin, PW-3 Kuldeep Thakur, visited prosecutrix’ house and asked her about the incident. She narrated the entire incident to him, in the presence of her mother and father. On 17th June, 2004, she was taken to Police Station, Tissa, where she lodged FIR Ex. PA. 5. Police got the prosecutrix medically examined. PW-12 Dr. Deepti Rana conducted the medical examination. She did not find any injury on the person of the prosecutrix. She found hymen ruptured. Vaginal orifice admitted two fingers and had some laxity. No fresh sign of sexual intercourse was noticed. She was opined to be exposed to sexual intercourse. …4… 6. Evidence with regard to the age of the prosecutrix was also collected from the school, as also the Panchayat. Her date of birth, as per such evidence, is 2.2.1987. 7. Appellant was arrested on 19th June, 2004. He was got medically examined, from PW-9 Dr. Jaswant Singh, who opined that the appellant was capable of performing sexual intercourse. 8. On completion of investigation, appellant was challaned. The concerned Judicial Magistrate, after complying with the requirement of Section 207 Cr.P.C., committed the case to the Sessions Court. Learned Sessions Judge charged the appellant with offences, under Sections 376 and 506 IPC. Appellant pleaded not guilty to the charge. So, he was tried for the aforesaid offence. 9. Prosecution examined 16 witnesses to prove its case. Appellant denied that he had committed the alleged crime. He took the plea that he had reported a large number of cases of unfair means against the students of his school to the School Education Board and because of that the students, who had been reported against, and their parents turned inimical towards him and fabricated a false story, using the prosecutrix as a tool. 10. Trial Court believed the prosecution version and convicted and sentenced the appellant, as aforesaid. 11. We have perused the record and considered the submissions made by the learned counsel for the appellant as also the learned Deputy Advocate General. …5… 12. Learned counsel for the appellant submitted that the evidence adduced by the prosecution, to seek corroboration to the testimony of the prosecutrix instead of corroborating, contradicts her in material particulars and that even her own testimony, with regard to several material facts, is self contradictory and, therefore, conviction of the appellant is not justified. He submitted that the learned Sessions Judge appears to have been swayed by the emotional aspect of the matter that the appellant was the Principal of the school, while the prosecutrix was a student of that very school. 13. Legal position, with regard to the probative value of the testimony of the prosecutrix, in a rape case, is well settled. Testimony of the prosecutrix alone is sufficient to convict a person of the charge of rape or other sexual offences, if the testimony inspires confidence. But this settled position of law has no application where the prosecution adduces corroborative evidence and such evidence, not only does not corroborate the prosecutrix, but also contradicts her especially when the testimony of the prosecutrix herself also happens to be self contradictory, in some material particulars. 14. In the present case, prosecution case is that the appellant, who is the Principal of a school, in which the prosecutrix had been studying, first obliged the prosecutrix by helping her pass her compartment examination in mathematics of 8th standard, by use of unfair means, and then allured her that she would be helped to get through 10+2 examination and also to pass JBT examination and when she …6… was fully entrapped, the appellant committed sexual intercourse with her. Now if it be true that the appellant helped the prosecutrix to use unfair means in her compartment examination and also promised her success in 10+2 examination and assured admission in JBT Course, he cannot escape the liability, even if the prosecutrix be shown to have not put up any resistance or having apparently agreed for the sexual intercourse. Such an apparent consent would be illegal and, hence, no consent in the eyes of law, because of the appellant being in a position to dominate the will of the prosecutrix. But, if the evidence shows that neither the appellant helped the prosecutrix in passing her compartment examination nor did he make any promise to see her through 10+2 examination and/or to get her admitted in JBT Course and the facts and the circumstances indicate that the prosecutrix was a consenting party, then the appellant cannot be held guilty, because the prosecutrix was past consenting age. Also, if this part of the prosecution story is not proved and the prosecutrix, on proper analysis of the evidence, is contradicted by other evidence, the allegation that the appellant had had sexual intercourse with the prosecutrix, itself may not be believable. 15. There is no evidence, except the bald statement of the prosecutrix, that the appellant helped her to get through the compartment examination, by using unfair means. In the examination-in-chief as also initial part of the cross- examination though she did say that the appellant had helped …7… her get through the examination, by helping her solve mathematics problems in the examination hall, yet when subjected to further probing cross-examination she admitted that it was not the appellant, who helped her in use of unfair means, but the mathematics teacher Sh. J.P. Thakur, who happens to be her relative. Having made this statement she made damage control exercise, but without success. She stated that it was the appellant, who had directed Sh. J.P. Thakur, a mathematics teacher, to help her use unfair means, but when further cross-examined, she stated that said Sh. J.P. Thakur had not been asked by the appellant to help her, in her presence. Prosecution did not examine said Sh. J.P. Thakur, the mathematics teacher of the prosecutrix for the reasons best known to it, even though he, according to the prosecution story, was a witness to another very material fact, viz., he saw the prosecutrix returning home in the morning, after having spent a night “with the appellant” and asked her as to where she had been for the night. Thus, the very genesis of the prosecution version stands belied by prosecutrix’ own statement. 16. Prosecutrix’ version about the appellant having threatened to kill her in case she disclosed the incident to anybody or his having promised to help her pass 10+2 examination or to get her admitted to JBT Diploma Course also does not inspire confidence. According to PW-8 Chaman Lal, he and one Raj Kumar, a relative of the prosecutrix, saw the prosecutrix going towards the house of the appellant on …8… the relevant date around 7 or 7.30 PM and that at 10.30 PM, on the asking of said Raj Kumar, they went to the house of the appellant and found the door bolted from inside and said Raj Kumar identified the voice of the prosecutrix. Said Raj Kumar has not been examined by the prosecution. Now if the testimony of the witness is believed, the prosecutrix was having some conversation with the appellant and it is because of this that Raj Kumar identified prosecutrix’ voice. Prosecutrix cannot be presumed to be protesting, when her voice was allegedly identified by Raj Kumar, because had it been so, he would not have bolted the door from outside. Instead he being not all alone, but accompanied by PW8 Chaman Singh, would have forced his entry into the room or taken some other steps to get the prosecutrix released, especially when she is related to him. The fact that the prosecutrix was talking to the appellant negates the prosecutrix version that she was threatened or allured by the appellant. Instead the statement of this witness even if assumed to be correct suggests that the prosecutrix was a willing partner to the alleged act of sex. 17. There is another reason to disbelieve the version with regard to the alleged promise to help the prosecutrix pass her 10+2 examination and to get her admitted to JBT Course. If the appellant had promised/assured the prosecutrix that she would be helped in passing 10+2 examination and to get admission to JBT Course, she would have continued her studies, but the evidence on record shows …9… that she stopped attending the school from 10th June, 2004 onwards and her name was struck off on 22nd June, 2004. She stopped attending the school about a week before the FIR was lodged. 18. Prosecution could have very easily collected authentic evidence about the allegation that there was a telephonic call from the appellant to the prosecutrix, before she went to the school on the relevant date. Record of the telephonic calls gets registered, as the exchanges are computerized. Printouts of the calls made from and received at the telephones of the appellant as also the prosecutrix could have been procured and such printouts were supposed to be the best evidence to prove the correctness or falsity of the allegation. No explanation for not collecting that evidence has been put forward. 19. Otherwise also, the story that the prosecutrix was called telephonically on the pretext that Karate class was going on is rendered doubtful by the prosecutrix’ own testimony. She admits that Karate training had started in the school on 15th May, 2004 and it was imparted daily for one hour from 8.30 AM to 9.30 AM, only on working days. 30th May, 2004, on which date the incident is alleged to have taken place, was a Sunday and, hence, the school was close. Now if Karate training was being imparted only on working days and that too in the morning from 8.30 to 9.30, the prosecutrix could have very easily confronted the appellant with these facts, had there been in fact a call from him, calling …10… her to the school on this pretext. Thus, this part of the story of the prosecutrix is also doubtful, not only on account of non- production of prints out of the telephonic calls, but also because of the fact that even to the knowledge of the prosecutrix Karate training was not to take place on the relevant date, it being a Sunday and also evening time. 20. It is also doubtful if the prosecutrix, in fact, went to Bhanjraru (Tisa) on 30th May, 2004, in the evening and stayed there for the night. Prosecutrix in her own testimony as PW-1 denies that any teacher was there in the school, when she remained there upto 7.30 PM or anybody asked her when she was at the school as to what she had been doing there on a holiday. However, PW-5 Om Parkash, a Shastri teacher, says that when he went to the school, on his way to bazaar, he saw that the office room of the appellant was open and so, he went there. He testified that the prosecutrix was sitting outside the office of the appellant and when he asked the appellant, who was present inside the office, as to why a girl was sitting outside, he (the appellant) required him to find out from the girl why she was there and that when he went out and asked the girl, she told that her uncle had gone to the colony and she was waiting for him. Prosecutrix herself denies that anybody, leave alone a teacher, came there and asked her why she was sitting there. 21. Contradictions in the testimony of the prosecutrix (PW-1), PW-4 Mohinder Singh and PW-8 Chaman Singh also suggest that prosecutrix might not have gone to Bhanjraru on …11… the relevant date. Prosecutrix herself stated that she remained at the school upto 7.30 PM, when she went to the house of the appellant, in the company of PW-4 Mohinder Singh, because the latter had asked her to come to his place at 8 PM. PW-4 Mohinder, Chowkidar of the school, says that he went with the appellant to his residence at 6 PM and that on reaching his residence, the appellant asked him to bring meals for him and that when he returned with the meals, he saw the prosecutrix sitting in the room of the appellant and then the appellant told him that since he had a guest, one more meal was required and, so, he went to the bazaar again to fetch another meal. He further stated that the appellant then instructed him to bring curd for two persons, on the next morning and thereafter he left for his own residence. PW-4 Mohinder Singh not only contradicts the prosecutrix, with regard to her testimony that PW-4 Mohinder Singh accompanied her to the residence of the appellant, but also with respect to her testimony that the appellant had asked her to reach his place around 8 PM. Had the appellant, in fact, asked the prosecutrix to come to his place at 8 in the evening, with the intention of keeping her at his place in the night, he would not have asked PW-4 Mohinder Singh to bring only one meal. Instead he would have asked him to bring two meals in the first instance itself. Further, according to the prosecutrix, Mohinder Singh also shared the meals with them, but PW-4 Mohinder Singh says that after supplying the meals, he went away. Statement of PW-4 Mohinder Singh that he brought …12… only two meals also suggests that he did not take his meals at appellant’s place, because the meals were only for two persons and not three. Moreover, PW-1, the prosecutrix, does not say that the Chowkidar (PW4 Mohinder Singh) was sent to the bazaar to fetch meals. 22. Statement of the prosecutrix that the appellant consumed liquor at 9 in the evening also does not appear to be correct. Normally, liquor is consumed before taking meals and not immediately after that. According to the prosecutrix, meals were taken, before PW-4 Mohinder Singh left. At the same time, she says that liquor was consumed after PW-4 Mohinder Singh had left. This statement cannot be correct, because liquor is usually not consumed immediately after meals. 23. PW-4 Mohinder Singh appears to be a procured and managed witness to seek corroboration to the testimony of the prosecutrix. He testified that on the next morning he went with curd and the prosecutrix was still there. However, the prosecutrix did not say that next morning PW-4 Mohinder Singh came with curd. 24. From the conduct of the father of the prosecutrix, namely PW-2 Narain Singh, it appears that the prosecutrix had not gone to Bhanjraru on the relevant date. When questioned in the cross-examination about the timings of Karate training, he admitted that timings of such training were from 8.30 AM to 9.30 AM. Now, if it were so, he was not supposed to have allowed the prosecutrix to the school at 4 …13… PM, when she was allegedly called by the appellant on a Sunday, on the pretext of learning Karate. He was asked if he made any inquiries on telephone or otherwise, when his daughter did not return for the night. He stated that he did not make any call, but searched for his daughter in the village from 7.30 PM to 8 PM. Now when his young daughter, aged only 17 years, had gone to the school on a Sunday to learn Karate, on being called by the appellant telephonically, as testified by him, he ought not to have searched for his daughter in the village and that too only upto 8 PM, but should have gone to the school immediately or at-least would have enquired on telephone from the appellant. His conduct, as reflected by the aforesaid statement, also negates the prosecution version that the prosecutrix was called to the school by the appellant, telephonically, on the pretext of learning Karate or the prosecutrix at all went to Bhanjraru on the relevant date. 25. Prosecutrix herself stated that it takes one hour to reach the school from her house. That means two hours time was required for going to the school and returning home. However, her father PW-2 Narain Singh stated that the prosecutrix left the house saying that she would be back within half an hour. How could it have been possible? This fact again creates a serious doubt about the correctness of the prosecution version. 26. Prosecutrix herself admitted that the residence of the appellant consists of two rooms and a kitchen and that …14… one room is occupied by the appellant and the other by two teachers, namely DW-1 Uttam Chand and one Uday Kumar. She admitted that the two rooms adjoin each other. When two teachers were there in the adjoining room, the appellant, who, per deposition of PW-2 Narain Singh, enjoyed a very good reputation, could not have even thought of calling a young girl to his room and keeping her at his place for the whole night and subjecting her to sexual intercourse, thrice in the course of that night. Prosecutrix admitted that both the teachers were in their room on the relevant date. DW-1 Uttam Chand also testified that he and Uday Kumar were in their room, adjacent to the room of the appellant, and that both of them were with the appellant upto 10.30 PM and till then no one had visited the appellant. 27. Prosecutrix stated that when she was returning home on the next morning, a teacher named JP Thakur, who is also related to her, met her near Sulana and asked where she had been returning from, upon which she told him that she was coming from the house of her friend. Prosecution did not examine this JP Thakur. He is the same man, who, according to the prosecutrix, is a mathematics teacher and helped her in the compartment examination of mathematics. The prosecutrix stated that this teacher though was her relative, yet after this incident their relations have become acrimonious. There could not have been any reason for the relations turning acrimonious or ceasing to be cordial, on account of this incident. Rather, JP Thakur was supposed to …15… support the prosecutrix in proving her charge against the appellant, on account of his being her relative, had it (the charge) been factually correct. 28. There was another relative of the prosecutrix, who, according to the prosecution story, had noticed the prosecutrix going towards the house of the appellant and spending night with the appellant, in his room. He was Raj Kumar, per testimony of PW-8 Chaman Singh. Prosecution did not examine him. According to PW-8 Chaman Singh, he and Raj Kumar had seen the prosecutrix going towards appellant’s place around 7 or 7.30 in the evening, when they were returning with fuel wood from the forest and that later in the night around 10.30 PM, on the asking of Raj Kumar, he accompanied said Raj Kumar to the house of the appellant, where Raj Kumar overheard the prosecutrix and identified her voice and then they bolted the door from outside. However, PW-4 Mohinder Singh says that when he went to the appellant’s place, in the morning, the door of the room was bolted from inside. If the door had been bolted from outside, per testimony of PW-8 Chaman Singh, it was supposed to be so bolted on the next morning at 6 AM, when PW-4 Mohinder Singh claims to have gone with the curd. Moreover, Raj Kumar being a relative of the prosecutrix was not supposed to have remained silent, had the story narrated by PW-8 Chaman Singh been true. He would have immediately informed, at-least the father of the prosecutrix, if not the police or the teachers in the adjoining room. Non- …16… examination of Raj Kumar also makes it highly doubtful whether the prosecutrix was with the appellant at his residence on the relevant night. 29. There is also unexplained delay in lodging the FIR, at least after the prosecutrix went to the Police Station for making the report. According to the prosecutrix, she reached the Police Station on 17th June, 2004 at 9 in the morning, but the FIR was recorded at 9.30 PM, as is clear from FIR Ext. PA. There is no explanation for this 12 hours delay. 30. It appears from the evidence on record that PW-3 Kuldeep Thakur, who claims to be a Press Reporter and a cousin of the prosecutrix, is a person behind the registration of the case against the appellant. He played a role in preparing the people to become witnesses against the appellant. 31. PW-4 Mohinder Kumar, Chowkidar of the school, admitted in the cross-examination that once a vehicle came to the school and in that vehicle he was taken to helipad by some young men, one of whom was PW-3