IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.602 of 2002 Date of Decision : August 05, 2011 State of H.P. …Appellant Versus: Ajay 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. Vivek Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Dy. A.G. For the respondent : Mr. N. K. Thakur, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 29.05.2002 delivered by the learned Sessions Judge, Hamirpur, in Sessions Trial No. 09 of 1999, whereby he acquitted the accused of having raped the prosecutrix. 2. The prosecution story in brief is that the prosecutrix on 12.6.1998 filed a complaint (Ext.PW-3/A) with the Deputy Commissioner, Hamirpur complaining that on 1.6.1998 when she was sleeping with her cattle in the verandah of the house, the accused entered the house and forcibly committed sexual intercourse with her. Her husband Deep Ram was not at home. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 He came back in the evening of 2.6.1998, when she told him the entire story. The husband thereafter called the villagers and in front of them the accused admitted that he had raped the prosecutrix. The villagers asked him to apologise but he refused to do so and stated that he had done what he had to do and that they can do whatever they wanted to do. According to the prosecutrix, she belongs to a very poor family and her husband is a labourer. 3. On the basis of the complaint, F.I.R. (Ext.PW-8/A) was recorded. Investigation was carried out. The prosecutrix was medically examined and thereafter the accused was challaned and charged for having committed the aforesaid offence. 4. The prosecutrix appeared in the witness box as PW-3. She is a married lady, aged about 35 years. She by and large repeated what had been stated in the complaint. But there are material changes, improvements and contradictions in her statement in Court when compared with the averments made in complaint (Ext.PW-3/A). Whereas in the complaint, it was stated that the accused had refused to apologise and had infact stated that he had done what he had to do and they (villagers) can do whatever they wanted to do, in Court, the complainant stated that the accused had begged pardon and offered to pay Rs.300/- as compensation. He however did not pay Rs.300/- and falsely stated that this amount had already been paid. Thereafter, she visited the Pradhan of the Gram Panchayat on the next day and reported the matter to him in writing which is Ext.PW-3/A. This 3 also does not appear to be correct since the complaint is not addressed to the Pradhan but is addressed to the District Magistrate. No doubt, it has been forwarded through the Pradhan but it was not addressed to him. 5. In the complaint, it was stated that the prosecutrix was sleeping along with her cattles and Ajay Kumar entered the house. There was no mention that the house belonged to Sada Ram. However, in Court she stated that the house was situated in the land of Sada Ram and they were looking after his property. She was confronted with her complaint, where no such fact was stated. 5 In the complaint, there are no details about the manner in which the accused overpowered the prosecutrix. In Court, the complainant gave a detailed version and made improvements and stated certain things which were not written in the complaint. Normally, this court does not suspect the F.I.R. to be an encyclopedia to the entire events but when the complaint is made 3 or 4 days after the incident, the same is expected to be complete and detailed. It appears that on 4.6.1998, the Gram Panchayat had also sent a communication (Ext.PW-2/A) about this very incident to the Deputy Commissioner but the complaint (Ext.PW-3/A) is undated and only bears forwarding note of the Gram Panchayat and thereafter a note by the S.H.O., Police Station, Barsar dated 12.6.1998. It is not clear as to on which date the complaint was actually received in the office of the Deputy Commissioner. 4 7. The prosecutrix also admits that she has her own house and cattle shed in the village. The prosecutrix could not give any explanation as to why she was sleeping in the house of Sada Ram. Another important factor is that she has admitted that there is a boundary dispute between her and the accused, which boundary dispute is going on between the parties for long time. Therefore, her statement has to be read with care and caution. According to her, on the night of the incident she had told her mother-in-law about this incident but did not tell to any body else about the incident. 8. PW-12 Deep Ram is the husband of the prosecutrix. According to him, he was not at home on 1.6.1998 but returned home in the evening on 2.6.1998. Sh. Sada Ram used to reside at Delhi and, therefore, had given his land for cultivation to Deep Ram and his wife. His wife told him that she was sleeping in the verandah of Sada Ram to keep watch on the cattle and look after his house when she was raped by the accused. He thereafter went to the house of Durgi Devi, Ward Panch and she directed him to go to the Pradhan and, therefore, he went to the house of Pradhan, who directed him to come the next morning i.e. on 3.6.1998. He thereafter collected the villagers in the night on 2.6.1998 itself and the accused was summoned who came to the spot alongwith his mother. His version is that he got an application written and, therefore, he wanted to hand it over to the Pradhan but then the mother of the accused stated that they should be pardoned. The villagers formed a Khangi Panchayat and 5 when the accused was questioned he begged mercy and fine of Rs.300/- was imposed upon the accused. The accused paid Rs.300/- to Deep Ram’s mother but on the next day i.e. 3.6.1998, the father of the accused asked for the return of the money and stated that the matter be got decided through the Court. Sh. Deep Ram did not return the money and on the evening of 3.6.1998, he went to the house of the Pradhan who again directed him to come the next morning and then he went to the house of Pradhan on 4.6.1998 along with his wife and Ward Panch Durgi Devi. Other Ward Panches were also present. Thereafter, the prosecutrix narrated the incident to the Pradhan and other persons and wrote an application and handed it over to the Pradhan. The Pradhan also wrote a letter and handed it over to Deep Ram with the direction to hand it over to the Deputy Commissioner, Hamirpur. On the same day, he handed over the application to the Deputy Commissioner. Unfortunately, neither Ext.PW-2/A nor Ext.PW-3/A bear any endorsement from the office of the Deputy Commissioner regarding the date on which it was received. The Deputy Commissioner has not been examined. 9. The wife herself has given two contrary versions as mentioned above but according to her the accused had told before the villagers that he had already paid Rs.300/- to her but the version given by the husband is totally different. According to him, Rs.300/- were paid to his mother i.e. mother-in-law of the prosecutrix and the father of the accused asked for the return of the amount on the next day which is not stated by the 6 prosecutrix. PW-2 Durgi Devi in her statement states that when the husband Deep Ram complained to her, she asked him to get the matter settled. She in her examination-in-chief itself has stated that the villagers pressurized and threatened the accused to admit his mistake. According to her, documents to this effect were prepared. Thereafter again complaint was made to the Pradhan. She in cross-examination states that the prosecutrix and her husband are having their separate residential house which is at a distance of about 200 yards from the house of Sada Ram. She was confronted with the statement recorded by the police with regard to the alleged confession made by the accused but in such statement no such facts are mentioned. Whereas the prosecutrix has stated that she was not married before she married Deep Ram, this witness admits that the prosecutrix was previously married and her previous husband had turned her out from his house. 10. PW-4 Anil Verma was the Pradhan of the Gram Panchayat at the relevant time. According to him, on 2.6.1998 Deep Ram came to his house and made complaint about the incident. Thereafter, Deep Ram again came to him on 3.6.1998 and in the morning on 4.6.1998 this witness convened a special meeting of the Panchayat and thereafter sent letter Ext.PW-2/A along with the complaint Ext.PW-3/A through the husband of the prosecutrix. 11. PW-5 Hari Ram is an another independent witness. According to him, the accused came at his residence in the night 7 at about 10 P.M. and started shouting for Deep Ram, husband of the prosecutrix. When nobody responded, the accused came to the bed of witness Hari Ram. The prosecutrix was sleeping in the Verandah of the house of Sada Ram. The accused caught hold of the prosecutrix from her arm and broke her bangles. The witness told the accused to behave properly and thereafter the accused went back to his house. According to this witness, thereafter he went to sleep and does not know what happened thereafter. Importantly this witness was not declared hostile. He gives a version which is totally different to the version of the prosecutrix. According to him, the house of Sada Ram is very close to his house. He only saw the accused teasing the prosecutrix and breaking her bangles. If he could see this part of the incident, he should have seen the other part of the incident also if it had happened. 12. PW-14 Kartar Chand gives an another version. According to him, Deep Ram came to his house and informed him about the incident. His version is that when Ajay Kumar came before the villagers, he admitted that he had committed rape with the prosecutrix and that he should be pardoned. Thereafter, the Panchayat fined him Rs.300/- and document Ext.PW-14/A was prepared which bears his signatures. He has been cross-examined at length. According to him, a sum of Rs.300/- was paid by the accused to Deep Ram, husband of the prosecutrix. The fact about the alleged extra judicial confession made by the accused is not recorded in the statement under Section 161 Cr.PC of the witness 8 recorded by the police. No such document was also produced before the police. The witness stated that he was not even aware what is written in Ext.PW-14/A . According to him, Ext.PW-14/A was written by Krishan Kumar who has not been examined. 13. As pointed out above, in the present case there are many contradictions in the statements of the prosecutrix, her husband, the Ward Panches and other persons who collected at the spot. Each one of these witnesses has a different story to tell about the manner in which the occurrence took place. The statement of PW- 5 Hari Ram indicates that either the incident was an incident of outraging the modesty and if there was sexual intercourse, it was a case of consensual sex. 14. No case for conviction of the accused for rape is made out. Therefore, we find no merit in the present appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ), Judge. ( Sanjay Karol ), Judge. August 05, 2011. (rana)