IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeals No.249, 250 & 251 of 2006 Decided on : December 4, 2009 Cr.A No.249/2006 Sanjay Kumar …Appellant. Versus State of H.P. …Respondent. Cr.A No.250/2006 Sumit Kumar …Appellant. Versus State of H.P. …Respondent. Cr.A No.251/2006 Deepak Kumar …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(s) : Mr. Anoop Chitkara, Advocate (in all the appeals). For the Respondent- : Mr. Ramesh Thakur, Assistant State. Advocate General. Surjit Singh, J(Oral) These three appeals are being disposed of by a common judgment, because the appellants in all of them have assailed the same judgment, i.e. judgment dated 23rd June, 2006, of learned Sessions Judge, Sirmour, whereby they have been convicted of offences, under Sections Whether reporters of the local papers may be allowed to see the judgment? …2… 376(2)(g), 452, 323 and 506(1) of the Indian Penal Code and sentenced as follows: Section under which convicted. Sentence awarded 376(2)(g) IPC Rigorous imprisonment for ten years and fine of Rs.15,000/-; in default of payment of fine rigorous imprisonment for a further period of two years, each. 452 IPC Rigorous imprisonment for three years and fine of Rs.2,000/-; in default of payment of fine rigorous imprisonment for a further period of six months, each. 323 IPC Rigorous imprisonment for six months and fine of Rs.500/-; in default of payment of fine rigorous imprisonment for a further period of one month, each. 506(1) IPC Rigorous imprisonment for six months and fine of Rs.500/-; in default of payment of fine rigorous imprisonment for a further period of one month, each. 2. Prosecution case, as per evidence on record, may be summed up thus. On 23rd March,2 004, around 10.45 p.m., when the prosecutrix, examined as PW-1, was present in her Dhara (a temporary shed), which she used as residence, and was cleansing utensils, all the three appellants went there. Husband of the prosecutrix, namely Kanshi Ram, was also present in the Dhara, at that time. A kerosene lamp was lit in the Dhara, when the appellants entered. One of them put out that lamp and then two of the appellants caught hold of the prosecutrix, while the third loosened the string of her Salwar. Thereafter, one of the appellants went out of the Dhara and two others …3… committed rape on the prosecutrix (who was aged about 50 years), one after the other. Prosecutrix cried for help. She was slapped on her face. In the meanwhile, PW-2 Puran Bahadur, who was serving in the Police Department, accompanied by his son Ramu, a student of 8th standard, passed by the Dhara of the prosecutrix. He challenged the appellants, upon which two of them ran away, while one of them, namely Deepak Kumar, scuffled with him and snatched his torch and broke it. 3. Bangles of the prosecutrix got broken when two of the appellants were committing rape on her and also her earrings got loosened and fell on the spot. 4. After the incident, the prosecutrix and her husband Kanshi Ram ran towards the nearby forest to save themselves. PW-2 Puran Bahadur went to Police Post, Katcha Tank and informed the policemen present there. Then PW-2 Puran Bahadur went to the forest and called out the prosecutrix and her husband. They responded to his calls. PW-2 Puran Bahadur took them to the Police Station, where the prosecutrix lodged FIR Ex. PW-1/A. 5. All the three appellants were arrested on the next morning. Prosecutrix identified them to be the persons who had committed rape on her. She was not knowing any of the three appellants from before, either by their …4… appearance or by names, but one appellant called the other by the name of Dimple. 6. Prosecutrix was got medically examined on the next following day. PW-9 Dr. Ranjana Oberoi conducted her medical examination and noticed the following injuries on her person: “1. There was abrasion over the right forearm lateral side, reddish in colour ¼ cm in size. 2. Abrasion over the right ear ½ cm in size over the lobule reddish in colour. 3. Abrasion over the right knee ½ cm in size, reddish in colour. 4. Abrasions 3 linear shaped 4cm x 3cm x 1cm parallel, reddish in colour over the back, right side limber region. 5. Contusion over the left thigh medial side in the middle 2cm x 1cm, reddish brown oval in shape.” She gave the opinion that the injuries could have been sustained within 24 hours. Medical examination of the prosecutrix was conducted by her on 24th March, 2004, at 10.20 a.m. 7. Appellants were also got medically examined. Medical examination of appellant Sumit Kumar was conducted by PW-6 Dr. S.P. Vermani, who though gave the opinion that there was nothing suggesting that he was incapable of performing sexual intercourse, yet he noticed smegma under the prepuce of his penis. His medical examination was conducted on 24th March, 2004 at …5… 4.35 p.m. Appellant Deepak Kumar was medically examined by PW-7 Dr. S.C. Goyal. It was opined that there was nothing, indicating that he was incapable of performing sexual intercourse. The doctor, who examined the third appellant, namely Sanjay Kumar, was not examined, but the medico legal report issued, in respect of this appellant, was admitted in evidence of the prosecution, as the said appellant admitted that he was medically examined and medico legal report was issued. 8. Case was investigated by PW-11 SI Lekh Ram of Police Station, Nahan. Appellants Deepak Kumar and Sumit Kumar made disclosure statements, under Section 27 of the Evidence Act, to PW-11 SI Lekh Ram, leading to recovery of two earrings, Ex. P-2 and Ex. P-3. PW-2 Puran Bahadur produced his broken torch to the police on 3rd April, 2004, which was taken into possession, in the presence of PW-5 Jagat Singh. 9. All the appellants were charged with offences, under Sections 452, 376(2)(g), 392, 323 and 506, read with Section 34 of the Indian Penal Code, and on their pleading not guilty, they were tried for the said offences. 10. Prosecution mainly relied upon the testimony of the prosecutrix, examined as PW-1, the doctor, who medically examined the prosecutrix, namely PW-9 Dr. Ranjana Oberoi and PW-11 SI Lekh Ram, who …6… conducted the investigation of the case. PW-2 Puran Bahadur turned hostile. PW-2 Puran Bahadur’s son Ramu and prosecutrix’ husband Kanshi Ram were not examined. 11. Appellant Deepak Kumar took the plea that his brother Raj Kumar had been tortured by the police, when he was in their custody, sometime prior to the alleged occurrence and that on account of that torture his brother’s one eye was badly damaged and so a complaint had been made to the Superintendent of Police to seek compensation and because of that he had been falsely implicated and PW-2 Puran Bahadur, being an employee of Police Department, was used as a pawn. Other two respondents pleaded innocence. Appellant Sanjay Kumar alias Dimple stated that there were three boys by the names of Dimple in his locality. 12. Learned trial Court believed the prosecution version and held all the appellants guilty and convicted and sentenced them, as aforesaid. 13. We have heard the learned counsel for the appellants as also the learned Assistant Advocate General and gone through the record. 14. Testimony of the prosecutrix, who appeared as PW-1, does not inspire confidence, not only on account of its being contradictory to the earliest version, which she gave to the police vide FIR Ex. PW-1/A, with which she was …7… duly confronted, but also because the medical evidence suggests that one of the two appellants, who, as per the earliest version, committed rape, does not appear to have committed act of sexual intercourse atleast 24 hours prior to his medical examination, which was conducted at 4.35 p.m. on the next following day, i.e. on 24th March, 2004. 15. In the FIR, vide portion B to B, the prosecutrix got recorded that only two of the three boys had committed sexual intercourse with her, but while in the witness-box she stated that all the three boys committed sexual intercourse and that two of them committed sexual intercourse once each and the third one committed it twice. She was duly confronted with the FIR, Ex. PW-1/A. She could not offer any explanation for the contradiction. 16. Again, while in the witness-box, she stated that the earrings, which she was wearing, had been snatched by the appellants, but in the earliest version Ex. PW-1/A, vide portion A to A, with which she was duly confronted, she got recorded that the earrings got loosened and fell inside the Dhara, when two of the appellants were committing sexual intercourse with her. 17. Though it cannot be specifically made out from the evidence on record as to which of the three appellants remained outside and did not commit sexual intercourse, per the earliest version, yet it appears from a combined …8… reading of the FIR and the testimony of PW-2 Puran Bahadur that it was appellant Deepak Kumar alias Sethi, who remained outside the Dhara and did not commit the sexual intercourse. In the FIR, it is recorded that when the prosecutrix was being subjected to rape, PW-2 Puran Bahadur accompanied by his son Ramu happened to pass by her Dhara and on hearing her cries they came towards her house and one of the three boys, who was standing outside, scuffled with Puran Bahadur. PW-2 Puran Bahadur, while in the witness-box, stated that it was appellant Deepak Kumar alias Sethi, who scuffled with him and whom he knew from before. That means according to the earliest version, Deepak Kumar alias Sethi did not commit the act of sexual intercourse, but remained outside the Dhara but exhorted the other two appellants to commit rape. However, while in the witness-box, the prosecutrix stated that appellant Deepak Kumar committed sexual intercourse with her twice. 18. In her cross-examination, the prosecutrix stated that it was completely dark, both inside the Dhara and outside and so she did not see any of the respondents and that it was at the police station, on the next morning, that she was shown the respondents and told that it were they who committed rape on her. This statement renders the entire prosecution story quite shaky. …9… 19. PW-6 Dr. S.P. Vermani testified that he noticed smegma under the prepuce of the penis of appellant Sumit Kumar, at the time of his medical examination, which was conducted on 24th March, 2004, at 4.35 p.m. The witness stated that the presence of smegma indicated that he did not perform sexual intercourse within 24 hours prior to his medical examination. The testimony of the witness gives a lie to prosecutrix’ version that two boys, who entered the Dhara, one of whom was supposed to be Sumit Kumar, committed rape on her. 20. Story regarding recovery of earrings, at the instance of two of the appellants, namely Deepak Kumar and Sumit Kumar, also does not inspire confidence. As already noticed, according to the earliest version, earrings had fallen inside the Dhara, when the prosecutrix was being raped by two of the appellants, but during the course of trial, the prosecutrix stated that the appellants had snatched her earrings. This change in the story appears to have been brought about, with a view to connecting the appellants with the crime by stage-managed recovery of earrings at their instance. 21. It has been stated by the prosecutrix that it was completely dark inside the Dhara as also outside it. Now, when the earrings had fallen inside the Dhara, per the earliest version, Ex. PW-1/A, it is not believable that the …10… appellants picked up those earrings in the darkness and carried the same with them and then shared those earrings between two of them and kept them concealed at different places. Otherwise also, testimony of PW-11 SI Lekh Ram, Investigating Officer, regarding alleged disclosure statements by two of the appellants, namely Deepak Kumar and Sumit Kumar and discovery of earrings, pursuant to those statements, is not corroborated by independent witnesses, namely PW-2 Puran Bahadur and one Babu Ram (not examined). PW-2 Puran Chand, even though an employee of the Police Department, did not support the prosecution version that the appellants made disclosure statements and got discovered the earrings. 22. It is also the case of the prosecution that human semen was found on the Salwar of the prosecutrix. Salwar and the shirt of the prosecutrix were taken into possession by PW-9 Dr. Ranjana Oberoi, at the time of her medical examination, and made into a parcel, which was sealed by the said witness with her own seal, which produced the impression of letters “ZH”. This parcel, according to the prosecution version, was sent to the Chemical Examiner and the said Chemical Examiner, vide report Ex. P-10, found human semen and blood thereon. However, when the parcel, containing the clothes, was produced in the Court, it was still sealed with seal “ZH”, which indicated that what …11… was sent to the Chemical Examiner was not the Salwar of the prosecutrix, which was sealed in a parcel by PW-9 Dr. Ranjana Oberoi, but some other Salwar. 23. For the foregoing reasons, we are of the considered view that the evidence led by the prosecution, particularly testimony of the prosecutrix, does not inspire confidence. Hence, all the appeals are accepted, judgment dated 23rd June, 2006, of the trial Court, convicting and sentencing the appellants for the aforesaid offences, is set aside and all of them are acquitted. They being in jail, serving the sentence awarded by the trial Court, are ordered to be released forthwith, in case their detention is not required in any other case. All the three appeals stand disposed of accordingly. ( Surjit Singh ), J December 4, 2009(sd) ( Surinder Singh ), J