IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.59 of 1996 Date of Decision : March 02, 2010 State of H.P. …Appellant Versus: Satpal & Anr. …Respondents. 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. R. M. Bisht. Dy. A.G. For the respondents : Mr. Karan Kanwar, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 01.11.1994 delivered by the learned Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 23- N/7 of 1994, whereby he acquitted the accused of having committed an offence punishable under Sections 376(2) of the Indian Penal Code. Briefly stated the facts of the case are that on 16.12.1993 PW-3 Smt. Bhauji Devi made a complaint to the police which resulted in lodging of F.I.R. Ext.PB. In this complaint, it was alleged that on 7.12.1993 at about 4.00-5.00 P.M., Shri 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Budh Ram s/o Shri Premu of the same village came to her house and informed her that his younger brother was getting married and he invited her children to take part in the marriage ceremony. The complainant then sent her daughter (the prosecutrix) aged about 12 years along with her two younger brothers to the house of Shri Budh Ram to partake of the marriage feast. At about 7.00- 8.00 P.M., the two boys returned home but the prosecutrix did not come back. The complainant thought that may be the prosecutrix is enjoying the feast of songs and dance which would be going on in the house where the marriage was taking place. The prosecutrix returned at about 1.30/12.00 a.m. in the night intervening 7th/8th December, 1993. The complainant asked her daughter as to why she had come so late. The prosecutrix told the complainant that after she had taken her meal, Budh Ram s/o Premu handed her over to Hira Singh and Satpal (accused). Both the accused took her to a ‘nullah’ which was deserted. First Hira Singh caught hold of the hands of the prosecutrix with one hand and gagged her mouth with other hand while Satpal broke the string (nara) of her salwar and raped her. Thereafter Satpal held her arms and gagged her mouth while Hira Singh raped her. Then the complainant woke up her husband and informed him about the incident. According to the complainant her husband had weak eye-sight and he told her that nothing can be done in the middle of the night and they would be taken in the morning. Next day, Hira Singh alongwith Prem Singh came to the house of the complainant and stated that they had committed grave mistake at 3 night and they would bear the entire expense of the treatment of the prosecutrix. Then the complainant along with the prosecutrix and her elder son Rupu along with Hira Singh went to Solan where the prosecutrix was got treated from a private doctor. Hira Singh also paid Rs.5000/- to the complainant. Initially Budh Ram was also arraigned as an accused but he was later discharged. On the basis of this complaint, F.I.R. was lodged. The prosecutrix was got medically examined. The police visited the spot and the site plan was prepared. The witnesses were examined and after completion of investigation, the challan was filed and the case was commuted to the Court of Sessions for trial and the accused were charged for having committed an offence punishable under Section 376(2) IPC. After trial, they have been acquitted. Hence, the present appeal. At the outset, we may note that there is no dispute with regard to the fact that the prosecutrix was less than 16 years old at the time when the incident took place. However, the prosecution must establish the guilt of the accused beyond reasonable doubt before they can be convicted. The prosecutrix while appearing in the Court as PW-3 made a totally different statement. According to her deposition in Court, she had also gone to attend the marriage. This is contradictory to what she had stated in Ext.PB, in which it was stated that the prosecutrix went along with her brothers. There are glaring contradictions in the statements of the witnesses as made in the Court and as initially 4 recorded which casts a grave doubt on the prosecution case and the veracity of the prosecution story. Whereas PW-3 in the complaint had stated that the prosecutrix had gone with her two younger brothers, in her deposition in Court she stated that she (complainant) had gone to attend the wedding along with her elder son and his wife and daughter. A totally new version is given. The two younger sons are not shown to have gone for the wedding and her elder son and his wife were introduced. The second major contradiction is that whereas in the complaint it was stated that the prosecutrix returned at 1.30/2.00 a.m. at night, in Court, PW-3 deposed that she does not know when the prosecutrix returned home but next morning when she got up she found the prosecutrix and PW-2 Asha Devi sleeping in the house in the same bed. The third major contradiction is that whereas in the complaint Ext.PB, it was stated that on the night intervening 7th /8th December, 1993, the prosecutrix had informed her mother that she had been raped, but while appearing in Court her mother states that the prosecutrix informed her about the incident only after the occurrence. The fourth major contradiction is with regard to the manner in which the incident took place. Whereas in the complaint it was stated that the prosecutrix had informed the complainant that Budh Ram had handed her over to the accused persons, in the deposition it is stated that Budh Ram turned the 5 prosecutrix out of his house and when the prosecutrix and Asha Devi were returning home, the accused Hira Singh caught hold of her and Sat Pal committed rape on her. The fifth major contradiction is that whereas in the original version it was stated that the prosecutrix was raped both by Hira Singh and Sat Pal, in her statement in Court it is stated that only Hira Singh raped her whereas Sat Pal abeted the rape. The sixth major contradiction is that in the complaint it was stated that next day one of the accused persons along with accused Hira Singh and Prem Singh had gone to her house and then they all went to Solan. But in the deposition in Court it is stated that on the day when the incident happened she took her daughter, the prosecutrix to Police Post Nohradhar and lodged the report Ext.PB. When the contents of the report Ext.PB were read out to this witness she stated that she has not lodged any such report. Surprisingly, this witness was never declared hostile, even though she has totally retracted from her written statement. Coming to the statement of the prosecutrix, there are major contradictions in her statement also. According to her, she had gone to attend the marriage of Budh Ram’s brother Raj Pal along with Asha Devi d/o Mohan Lal (PW-4). Name of Asha Devi does not find mention in the complaint Ext.PB or in the previous statement of the prosecutrix recorded under Section 161 Cr.PC. She states that Budh Ram turned her and Asha Devi out of his house and on the way Hira Singh and Sat Pal accosted them and Sat Pal committed rape with her. After committing rape both the 6 accused disappeared. Then Asha Devi brought her to her house. According to her she was holding her salwar in her hands which was stained with blood. Asha Devi and she went to sleep in her house and next morning she had narrated the incident to her mother. She further states that she was treated at Nahan Hospital and Rajgarh Hospital. She further states that when she went to Nahan, police officials and one Kamal went along with her. Her clothes i.e. Salwar Ext.P1 & shirt Ext.P2 which she was wearing at the time of occurrence were taken into possession by the police. In cross-examination she states that the distance of Budh Ram’s house from her house is same as the building which was visible from the Court room. The learned trial Court has noticed that the distance referred to is about 20 yards. She admits that it was very dark when Budh Ram turned her and her friend outside his house. She admits that only a person standing at a distance of 3 feet could be recognized. She admits in cross examination that she had never seen the accused before the commission of the alleged offence committed by them. According to her she could identify the accused since Budh Ram had told her that Hira Singh and Sat Pal are his relatives. This portion of the statement of the prosecutrix makes no sense. Why would Budh Ram give the names of his relatives for no rhyme or reason. A Court question was put to the witness if she had ever seen Sat Pal and Hira Singh prior to the alleged occurrence. She replied that she had never seen them before the occurrence. She was also asked whether she had seen the two accused at the house of 7 Budh Ram prior to the occurrence. She replied in the negative. This clearly shows that the two accused were not present in the house of Budh Ram. Therefore, there is no plausible explanation as to how she could identify the accused persons. Another reason to doubt the version of the prosecutrix is that in her initial statement made under section 161 Cr.PC, she had stated that she had been treated at Solan for 3-4 days. She had also stated that she had been taken to Nohra Dhar for treatment. However, in Court she stated that she had never made any such statement. As far as the statement of PW-2 is concerned, she is only 10 years old. No reliance can be placed on her statement since her name does not find mention in the complaint or even in the statement of the prosecutrix recaorded under Section 161 Cr.PC Ext.PA. It is apparent that she has been introduced at a later stage. Another flaw in the prosecution case is that other than the prosecutrix and her mother and Asha Devi, whose presence is itself doubtful, the prosecution has failed to examine the father of the prosecutrix, her elder brother Rupu, his wife or any other villagers to whom the matter was told during the period of 10 days. PW-3 Dr. Pratibha Sood examined the prosecutrix. According to her, the prosecutrix was brought to her with alleged history of having been sexually assaulted 10 days back. Her opinion is that the victim had been sexually assaulted. This witness prepared the medico legal report Ext.PN on 17.12.1993. It has been recorded in the MLC as follows:- 8 “Pt. has been treated pvtly. for bleeding pv for 3 days at Solan after the offence.” In cross-examination the witness stated that she must have been informed by some one accompanying the girl about her having been treated at Solan. She states that the girl did not reply to any of her questions. The information was not given by the girl. The incident in question is stated to have taken place on 7.12.1993, the FIR was lodged on 16.12.1993 i.e. 9 days after the incident. No plausible explanation has been given for this delay. Whereas initially it was stated that one of the accused (Hira Singh) took the prosecurtrix, alongwith her mother and she was treated at Solan for 5-6 days, in Court, the version given is that the prosecutrix told her mother about the incident 5-6 days later. Even if this is accepted to be correct then the prosecutrix told her mother about the incident on 12.12.1993. There is no explanation worth the name as to what happened between 12.12.1993 & 16.12.1993. We are aware that this is an unfortunate incident of a minor child being raped. In such case we may even base the conviction on the sole testimony of the prosecutrix. However, the same must inspire confidence. There are too many discrepancies in the version of the prosecutrix and her mother as already detailed above. This renders the prosecution version extremely doubtful. The other important factor is that the identity of the accused has not been established. The prosecutrix has clearly 9 stated that she had never seen the accused prior to the occurrence. There is no explanation as to from where she learnt the names of the accused. The prosecutrix is a young girl. While considering her testimony we cannot loose sight of the fact that over a period of 10 days, the prosecutrix could have been tutored by her parents and family members. Keeping in view the various discrepancies in the prosecution version as well as the grave doubt with regard to the identity of the accused, we are of the considered opinion that the trial Court rightly acquitted the accused. 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. March 02, 2010. (rana)