IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 276 of 2001 Date of decision: 10.05.2011 ____________________________________________________________________ The State of H.P. .....Appellant. Versus Ashwani Kumar. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? _____________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Dinesh Thakur, Advocate. R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 20.01.2001, passed by the learned Sessions Judge, Kangra at Dharamshala, District Kangra, H.P. in Sessions Trial No. 22 of 2000, acquitting the respondent-accused for the offence under Section 376 IPC in reference to FIR No. 11 of 2000 dated 22.01.2000. 2. As per prosecution story, PW-2 victim-prosecutrix (name not given), daughter of PW-1, aged about 15 years, on 19.01.2000 at about 7-8 a.m had gone in a tea garden for easing out. Accused-respondent came there and pushed her and forcibly committed rape on her and escaped thereafter. The victim- 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... prosecutrix came back to home and informed her mother, who later on informed Bodhraj, Pardhan of the Panchayat, who advised them to report the matter to the police. Thereafter, the matter was reported to the police on 22.01.2000 at about 4:30 p.m. The victim- prosecutrix was medically examined by PW-3, Dr. Veena and thereafter by Dr. Seeta Thakur. After completion of investigation, the accused-respondent was charged for the aforesaid offence. 3. In order to prove its case, prosecution examined as many as fifteen witnesses, whereas, accused-respondent through his statement under Section 313 Cr.P.C. denied the prosecution case, however, two defence witnesses were examined. 4. PW-2/victim-prosecutrix has stated that on the fateful day when she was to ease out in a tea garden at about 7-8 a.m., the moment she was easing out, Ashwani Kumar/accused-respondent suddenly came there and pushed her and forcibly committed sexual intercourse and when she tried to raise alarm, the accused- respondent gagged her mouth with his hands and after committing rape he ran away. The victim-prosecutrix came back weeping and informed her mother. On that day maternal uncle of the mother of the victim-prosecutrix had died and her mother went there. On her return, PW-1 (mother of the victim-prosecutrix) went to the house of the accused-respondent and the mother of the accused-respondent told her not to report the matter to the police. Thereafter, the matter was reported to the police on 22.01.2000 at about 4:30 p.m. and she (victim-prosecutrix) was medically examined. ...3... 5. PW-2 while deposing before the court on 09.11.2000 has reiterated the incident and endeavoured to support the prosecution case. However, she has stated in her cross- examination that when she went for easing out, Desh Raj and another girl also came there. Such narration was not made by the victim-prosecutrix while lodging FIR on 22.01.2000. As per testimony of the victim-prosecutrix/PW-2, made in her cross- examination, she narrated the incident to her mother, who told it to her father and none else. PW-2 has also stated in her cross- examination that she was told as to what to depose in the court, but she again stated that such statement was incorrect. PW-2/victim- prosecutrix is stated to have apprised about the incident to her mother, PW-1/Babli, who was earlier married to Rali Ram/DW-1, the father of the victim-prosecutrix, from whose loin victim-prosecutrix was born. Thereafter, PW-1 was married to Changra. PW-1 (Babli) gave birth to two children from her second husband, Changra. PW-1 (Babli) in her endeavour to support the prosecution case stated that PW-2 disclosed that she was raped. However, on the fateful day she (PW-1/Babli) had gone to the place of her mama at village Bir Kotli, who had died on the same day. When she came back, she visited the house of the accused-respondent and met his mother, Ram Kali, who told that the matter is not to be reported to the police as the matter may be settled in Biradri Panchayat. However, PW-1 waited for four days and since no panchayat was convened, she reported the matter to Bodh Raj, Pardhan of Gunehar ...4... Panchayat and on whose advise the matter was reported to the police. PW-1 was not told by PW-2 (victim-prosecutrix) that when she was easing out at that time Desh Raj and another girl were also present on the spot. PW-1 was not aware of the year of her marriage to her first husband and she was also not aware of the age of PW-2/victim-prosecutrix, whereas PW-1 got PW-2 admitted in the school. 6. PW-2/victim-prosecutrix was initially medically examined by PW-3, Dr. Veena Sharma, who noticed no external injury mark visible on her body and PW-3 was also not sure about the sexual assault on her. As such, PW-3 referred the matter for expert's opinion. PW-3 has also not found any injury on labia majora and labia minora. 7. PW-4 Dr. Sita Thakur, who subsequently examined the victim-prosecutrix, also did not find any injury mark on her person and PW-4, Dr. Sita Thakur, has opined that there was no evidence of recent sexual intercourse as such MLC, Ex. PC/1, was issued. As per medical opinion of PW-4, no evidence of sexual intercourse was found. In view medical report, the sexual assault is ruled out. 8. As per testimony of PW-2, when she was easing out, Desh Raj and another girl were also present on the spot, which fact surprisingly was not told by the victim-prosecutrix to her mother (PW-1). PW-2 has herself stated that she was told what to depose before the court. However, she subsequently resiled from her previous statement. In such circumstances, in our considered view, ...5... the testimony of the victim-prosecutrix alone is not inspiring confidence, though she is minor and capable of understanding the gravity of sexual assault. 9. PW-5, Sarup Lal Sharma, who brought the school register indicating that entry at serial No. 2346 dated 28.04.1990 regarding the date of birth of the victim-prosecutrix was done on 29.04.1984. However, PW-5, was not sure at whose instance PW-2 was admitted in the school. 10. PW-6, LHC Prithi Chand, PW-7, HC Ranjit Singh, PW-8 Bodh Raj, PW-9, Dr. Dinesh Sood, in due discharge of their official duties have endeavoured to support the prosecution case. However, nothing substantial is emanating from their testimonies. 11. PW-10, Dr. O.P. Ram Deo, has medically examined the accused-respondent. However, nothing substantial was found from the medical examination indicating that he was not incapable of sexual intercourse. PW-11, Naresh Sood, brought birth register of Bir Panchayat in which at serial No. 159 date of birth of the victim- prosecutrix was entered as 29.04.1984. As per entry made in the register the entry was made on 30.04.1984. However, PW-11/Naresh Sood, was not sure at whose instance such entry was made in the register. 12. PW-12, LHC Jagdeep Kumar, PW-13 Ravi Kumar, PW-14, HC Milap Chand and PW-15, S.I. Om Parkash, have endeavoured to support the prosecution case, however, their testimonies are not very material as they depose as per the role ...6... assigned to them in due discharge of their official duties. 13. DW-1, Dr. N.S.R. Shaney, on medical examination of accused-respondent also did not find any injury on his person. DW-2 Rali Ram, real father of the victim-prosecutrix and first husband of PW-1 (Babli) has stated that he was married to PW-1(Babli) in the year 1981 and the victim-prosecutrix was born from his loins in the year 1982. DW-2 has been working as a labourer, however, when he enquired from the victim-prosecutrix about the incident, she told him that nothing has happened, but his wife, PW-1 (Babli), wanted to perform the marriage of his daughter (PW-2/victim-prosecutrix) with the accused-respondent and, therefore, the accused-respondent was falsely implicated as he was not agreeing for marriage with the victim-prosecutrix. As such PW-1 (Babli) implicated the accused-respondent. 14. On analysis of the prosecution witnesses and the materials on record we notice that no sexual assault was made on PW-2/victim-prosecutrix. The testimony of PW-2/victim-prosecutrix is fluctuating. She never stated while lodging the FIR on 20.01.2000 that when she was easing out Desh Raj and another girl were also present on the spot, whereas, she had stated likewise in her statement made in her cross-examination. Though she resiled from her statement that she was tutored about the statement as what was to be deposed in the court. 15. In the totality of the facts and circumstances, the testimony of the victim-prosecutrix is not inspiring confidence and ...7... her testimony is also not corroborated by any other prosecution witnesses, specifically by medical experts. In these circumstances, in our considered view the prosecution has failed to prove its case beyond all reasonable doubts and the prosecution has also failed to bring home the guilt to the accused-respondent. Therefore, we do not find any occasion for interference in the findings arrived at by the learned Sessions Judge. In these circumstances, criminal appeal being devoid of merit is dismissed. 16. The personal and surety bonds of the accused- respondent stand discharged. (R.B. Misra) Judge (V.K. Sharma) Judge 10th May, 2011 (virender)