IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 408 of 1996 Reserved on: March 25, 2010 Date of Decision : April 30, 2010 State of H.P. …Appellant. Versus: Rakesh Syal alias Rakesh Kumar …Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. R. M. Bisht, Dy. A. G. For the respondent : Mr. N. K. Thakur, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 10.8.1993, accused was put to trial. In terms of judgment dated 17.10.1995 passed by the learned Sessions Judge, Hamirpur, H.P. in Sessions Trial No. 5 of 1994 titled as State vs. Rakesh Syal alias Rakesh Kumar, accused stands acquitted of the charged offence. As per the case of the prosecution, the prosecutrix was studying in 9th class in Govt. High School, Rangar. In the month of August, 1993 she had gone to village Jaisinghpur along 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 with her brother Sanjay Kumar (PW-5), where she stayed for about four days. On way back, she was waiting for a bus at the Bus Stop, Sujanpur where the accused came in a Taxi (Van). When the accused inquired, she informed him that she was on her way to village Rangar. The accused offered to leave them there. On the way, on the pretext of taking meals the accused stopped the taxi near a palace at village Tihra. After walking alone for some distance, he signalled the prosecutrix to join him. Leaving her brother behind in the taxi she joined him. They walked together for some distance. When they reached near the “Khandrat” (ruins) of the palace, the accused caught hold of her from the arms and after throwing her on the ground untied her salwar. After removing his pant and underwear he forcibly committed rape without her consent. When she tried to raise alarm the accused threatened her of dire consequences. Thereafter, both the accused and the prosecutrix came back in the Van and drove towards village Rangar. On the way, two other passengers also boarded the Van. However, she did not disclose the incident to anyone. It was only when she reached her house that she narrated it to her mother Smt. Shankro Devi (PW-6). The prosecutrix and her mother first went to meet Pradhan Ramesh Chand (DW-3) at his house and then at village Patlandar, where he was sitting in a shop with S/Sh. Lekh Ram and Sohan Singh. There the statement of the prosecutrix (Ext.PE) was recorded by the police on the basis of which FIR (Ext.PK) dated 10.8.1993 was registered against the accused 3 under Section 376 IPC with Police Station Sujanpur. The prosecutrix and the accused were got medically examined and their clothes seized and sent for chemical analyses to the Forensic Science Laboratory. With the completion of the investigation, challan was presented in the Court for trial and the accused was charged for having committed an offence punishable under Section 376 IPC, to which he did not plead guilty and claimed trial. The statement of the accused under Section 313 Cr.PC was recorded and in defence the accused also examined witnesses in support of his defence. The learned Sessions Judge acquitted the accused of the charged offence. The age of the prosecutrix (PW-4) is not in dispute. She does not disclose her age while deposing in Court. Her mother (PW-6) also does not reveal the same either. Dr. J. R. Azad (PW-3) who carried out the skiagram test of the prosecutrix has opined her age to be not less than 17 to 18 years which after giving the margin of error could be 18 to 21 years. In the instant case, the accused was examined by Dr. D.V. Rana (PW-1), Medical Officer, Primary Health Centre, Sujanpur, who has opined that no marks of injury were found on the genital parts, abdomen, face and fore-arm but however, one abrasion was present over the right side of the fore-head near the hair line which was 2.5 cm x 1 cm in size having stained with fresh clotted blood. The doctor has opined that the injury could 4 have been caused even two hours before the examination of the accused. In this case, the accused was medically examined on 10.8.1993 at about 8.50 p.m.. The crime is alleged to have taken place on 10.8.1993 during the day. The prosecutrix, in no uncertain terms has deposed that the accused did not sustain any injury at the time of commission of the alleged crime. Hence, the injury on the body of the accused cannot be linked to the crime in question. The prosecutrix was medically examined by Dr. Kalpana (PW-2). According to her, the prosecutrix did not complain of any pain on her body. There was no tenderness in the thigh or labia, no matting of hair, no stains on the external genetelia, thigh or the perinieal region. Also there was no evidence of recently affused or dried blood on the genital organs or neighbourhood. There was no bruising, laceration, redness, swelling or inflammation of external geniteria. The hymen was intact and its edges were normal. There were no marks of violence on the external geniteria, perineum, abdomen, cheek, back, limbs, neck or face. In the opinion of the doctor the prosecutrix was exposed to coitus. Evidently there were no signs of any injuries on her body. The brother of the prosecutrix admittedly has not witnessed the occurrence of the incident. According to him, he was sitting in the Van and his sister had accompanied the accused and when she returned after about 5 to 10 minutes her eyes were full of tears. Two persons also joined them on the 5 way. Though his sister was talking to him during the journey. She did not disclose the incident to anyone. It is a settled position of law that the conviction of the accused can be based upon sole testimony of the prosecutrix subject however the same inspiring confidence. The version of the prosecutrix, to our mind, does not inspire confidence at all. To us it seems to be a case of consent. She admits having known the accused from before. About 20 days prior to the incident she travelled in the Van, driven by the accused to meet her grand mother in village Bagehra. It is not her case that the accused had either induced her or enticed her to accompany him to the ruins of the palace. No doubt she states that the accused had got down from the vehicle on the pretext of taking meals at his house but however she also admits that there is no house or hotel in the upper portion of the palace which is in ruins. She is familiar with the palace. The house of the accused is not proved to be there. It was only after the accused had walked alone for some distance that he signalled her to join him. She voluntarily got down and joined him. Why did she leave her minor brother sitting alone in the Van? Till this time there was neither any threat nor any inducement. Her conduct is quite unnatural. She does not appear to state the truth. She admits that in the palace there is a temple which has a permanent Pujari. Incidentally on 10th August, 1993 “Janam Ashtami” celebrations were on. She admits that in the palace there is also a passage. Though she resisted the crime but did 6 not raise hue and cry as the accused threatened her. This version is highly unbelievable. In cross-examination she admits to have scratched and given two bites to the accused. Allegedly she was dragged by the accused for a distance of 15 feet due to which she received scratch marks on her body. Medical evidence on record belies the said version. That apart, prosecutrix admittedly came back with the accused and sat in the Van and travelled for some distance. The vehicle passed through several public and crowded places and yet she did not raise any alarm or disclose the said fact either to her brother or to the co- passengers. She had no reason to wait till the evening and disclose it to her mother. Her statement that the accused forcibly committed sexual intercourse with her against her consent and desire, does not inspire confidence. According to the mother (PW-6), they met Pradhan at village Patlandar and narrated the entire incident to him. Significantly, instead of the prosecution the Pradhan (DW-3) was examined by the accused. The Pradhan has given yet another version. According to him, at village Patlandar he saw a minor girl travelling with two boys in a Van. The vehicle going towards village Rangar was being chased by two motorcyclists. He got suspicious and telephonically informed the police. After sometime the same vehicle came back. He got it stopped and inquired from the boys the reason of the vehicle being chased by the motorcyclists. The agitated public gave beatings to them. While all this was going on, the police arrived at the spot. The 7 prosecutrix and her mother also reached thereafter. At that time, the accused made a grievance that the motorcyclists were chasing her and the accused who was her god brother. In fact he had saved her by giving lift in the Van. This renders the prosecution story to be absolutely false. The accused has had the advantage of having been acquitted by the Court below. It cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. April 30, 2010. (rana)