IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 81 of 2003. Date of Decision :31.10.2011. State of Himachal Pradesh ….Appellant. Versus. Nand Ram alias Nandu ….Respondent. Coram: Hon’ble Mr. Justice R. B. Misra, Judge Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. For the Appellant : Mr. Rajinder Dogra, Addl. Advocate General. For the respondent : Mr. Chaman Negi, Advocate vice Mr. Anup Chitkara, Advocate Dev Darshan Sud, J (Oral). The State has challenged the judgment of acquittal passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr acquitting the accused/respondent for offence punishable under Section 376 of the Indian Penal Code (hereinafter referred to as IPC) 2. The prosecution case in brief is that on 30.10.2000 FIR Ex.PW3/A was registered by complainant Kumari Tashi Dolma (PW3) who was accompanied by her father Shyam Prakash (PW4) alleging that the respondent had committed rape on her on 29.10.2000. The prosecution story is that on that day she had gone to the shop of a goldsmith in Sangla Bazar where Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 she had given old silver for converting into bangles. When she was returning from the shop, she was stopped by the accused/respondent near the fields of one Hukam Dassi. The accused/respondent forcibly set upon her and broke the ‘Nara’ (string) of her salwar and committed rape upon her. She thereafter went to home and reported the matter to her mother and sister-in-law. Since it was dark at that time, they lodged the report on the morning of the next day. On conclusion of investigation, the case under Section 376 of the IPC was registered. 3. The primary evidence to consider of course, is of the prosecutrix who has described the incident in detail, PW4 Ram Prakash, father of the prosecutrix, PW5 Bishmeshwar, brother of the complainant and PW6 Dr. Ashish Chaba, Medical officer, who in fact did not examine the prosecutrix but only proved MLC Ex.PW6/B which was written by doctor Deepak Tanwar, who had examined the prosecutrix and since he had died, his writing was proved by this PW6. 4. The case as urged before the learned trial Court is that the prosecutrix, PW3 Kumari Tashi Dolma has stated that she was undergoing tailoring training with Sunder, Tailor Master at Sangla since the year 1990. On 29.10.2000 at around 5.35 P.M., she went to the shop of Laiq Ram, Goldsmith from the shop of Sunder Singh, Tailor Master as she had given the old silver to be converted into bangles. When she was returning from the shop of Sunder Singh, accused/respondent started following 3 her and told her that he is coming as her guest for that day. He walked with her for some time and asked her to take rest. When she refused to do so he caught hold of her and took her towards the field belonging to Hukam Dassi, where she was beaten up by him. He forcibly broke the string of her salwar and thereafter raped her in the field. She tried her best to free herself from the clutches of the accused/respondent but could not succeed. She sustained injuries on her knee and back. After committing rape, the accused/respondent went away from there and gave a string of his jacket to her to use it as string to tie her salwar. She came home and narrated the entire incident to her mother Smt. Sanam Yang and sister-in-law Sarla Devi (PW7). Her mother narrated the entire incident to her father Shyam Prakash (PW4). She states that she was feeling pain in her entire body and since it was night time, she went to the police station Sangla along with her father Shayam Prakash, PW4 the next day i.e. on 30.10.2000 and lodged a report Ex.PW3/A. She identified shirt Ex.P1, salwar Ex.P3, underwear Ex.P3, Bra Ex.P4 and under shirt Ex.P.5, which she was wearing at the time of occurrence. She was subjected to medical examination by Dr. Deepak Tanwar, who is since dead. In cross-examination she admits that there are 2-3 paths which lead from her house to the shop of Sunder Singh and that one path passes through the road to the shop on the other side. She says that accused kicked her and punched her in the stomach and on her back as a result of which she sustained injuries on her knees and back. She again 4 corrected her statement by saying that she did not sustain injury. She says that accused caught her from her arm and hair and pulled her to some distance and thereafter picked her up and took her to the field. She cried at that time and tried to free herself by pushing away the accused/respondent. Her shirt was torn and stiched by her at her home. The place where she was raped had growth of bushes. The field of Hukam Dassi was barren at that time and there was no grass as the same has been cut. She remained on the spot for 5-10 minutes after the accused left the place. She reached home at about 8 P.M. by which time the other members of the house has already gone to bed and were sleeping. She narrated the entire incident to her mother at around 10.30/11.00 P.M. This is the entirety of the case put forth by the prosecution. 5. Second witness to the incident examined by the prosecution is PW4, Shyam Prakash, who is the father of the prosecutrix. He says that when his daughter reached home at about 8 or 8.30 P.M. in the evening, she told her mother Sanam (not produced in evidence) about the incident who thereafter narrated the entire story to him. Since it was late in the night, they went to the police station on the next day in the morning. He is also witness to the recovery of needle, Ex.P.6 and broken string of the salwar, Ex.P7 belonging to the prosecutrix. In cross- examination he admits that at 8.30 P.M. on 29.10.2000 when his wife told him about the incident he was awake. He admits that the distance between the field of Hukam Dassi and his house is 5 about 50 meters. There is “danga” (ledge) of stones around the field of Hukam Dassi. On the upper side, the height of the danga is 6 feet and on the lower side it is four feet. The danga of lower side is in his ownership. His house is located at a distance of about 40 meters from this danga. He admits that field of Hukam Dassi is on the upper side and his house is towards lower side and that field of Hukam Dassi is visible from his house and vice versa. He also says that there is a house of Bhagat Singh at a distance of 30 meters from his house. 6. PW5 Bishmeshwar is brother of the prosecutrix and if his version is to be believed he says that the distance between his house and the field of Hukam Dassi is about 15 feet and that one can easily hear if some one is talking in the field of Hukam Dassi from his house and vice versa. PW7 Sarla Devi is sister- in-law of the prosecutrix, who says that on 29.10.2000 at around 8 PM she found the prosecutrix weeping and narrated to her that she has been raped by the accused. She does not say anything else. PW6 Dr. Ashish Chaba, proves MLCs Ex.PW6/A and Ex.PW6/B of both prosecutrix and the accused respectively. Their medical examination was conducted on 30.10.200 in Civil Hospital, Sangla by Dr. Deepak Tanwar, who is since dead. In cross-examination he admits that there is cutting on the date, entry No.2 in the MLC Ex.PW6/A is not legible and that the opinion recorded is not on the basis of the examination by this doctor but on the basis of the report of chemical examiner. He also admits that there is no mention in Ex.PW6/A that sexual 6 intercourse taken place but from the opinion at Sr. No. 2 inference has been drawn in this regard. All that we need to say with respect to this piece of evidence is that it does not establish that the prosecutrix in fact was subjected to rape. The MLC Ex.PW6/A contains interpolation/alterations and some of it is not legible. 7. Adverting to the fact situation what we find is that it is difficult to accept the evidence of the prosecutrix for the reasons that the place where the incident is alleged to have occurred is at a distance of 50 meters from the house of prosecutrix. In case PW5 Bishmeshwar brother of the prosecutrix is to be believed, it is only at a distance of 15 feet from the house of the prosecutrix. Even taking their testimonies to be correct, what we find is that they corroborate the fact that the field of Hukam Dassi is visible from the house of the prosecutrix and if some one talks in the field such voice is audible in the house. We find that the prosecutrix says that she cried and tried to free herself from the clutches of the accused/respondent by pushing her. In this situation it becomes difficult to accept that such noise/cries were not audible in the house of the prosecutrix. What we again find from the evidence is that there are no marks of injury on the person of the prosecutrix. The prosecutrix must have sustained injury when she herself says that she was kicked, punched and pushed by the accused/respondent before he picked her up and took her to the field by the accused/respondent. Such rape in fact was 7 committed in the field. We find no clue in MLC Ex.PW6/A which shows that there was any mark of injury on the back of the prosecutrix. In these circumstances, the version given by the prosecutrix is difficult to accept. We do not find any perversity in the conclusion arrived at by the learned Sessions Judge. There is thus no merit in this appeal which is accordingly dismissed. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra), Judge. (Dev Darshan Sud), Judge. 31st October, 2011. (jai)