Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.16 of 2003 along with Cr.A. No.1 of 2003. Judgment Reserved on: 2.6.2010. Dated of Decision: 8.7.2010 1. Cr.A. No.16 of 2003. Sahi Ram ……… Appellant. Versus State of H.P. ……… Respondent. 2. Cr.Appeal No.1 of 2003. Arjun Singh ………… Appellant Versus State of H.P. …………Respondent Coram: The Hon’ble Mr. Dev Darshan Sud, Judge. Whether approved for reporting? Yes. Cr.A. No.16 of 2003. For the Appellant : Mr. Anup Chitkara, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General. Cr.A. No.1 of 2003. For the Appellant : Pt.Om Parkash Sharma, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General. Dev Darshan Sud, J: Both these appeals are being disposed of by this judgment as they arise out of the same judgment passed by the learned Sessions Judge, Kangra at Dharamshala, sentencing appellant Arjun Singh to undergo rigorous imprisonment for seven years for - 2 - offence under Section 376 of the Indian Penal Code and fine of Rs.5,000/-, rigorous imprisonment for two years for offence under Section 363 of IPC and fine of Rs. 500/, two years rigorous imprisonment for offence under Section 366 IPC and fine of Rs. 1,000/- rigorous imprisonment for two years and fine of Rs. 1,000/- for offence under Section 368 IPC. Sahi Ram appellant has been convicted for offences under Sections 366 and 363 IPC, for which he has been sentenced to undergo rigorous imprisonment for one year and fine of Rs. 500/- and rigorous imprisonment for one year and fine of Rs. 1,000/- for offence under Section 363 IPC. In both cases, sentences to run concurrently and in default of payment of fine further imprisonment has been ordered. 2. Briefly stated, the facts as adjudicated by the learned Sessions Judge, are that on 6.10.1998 in furtherance of their common intention, both appellants Arjun Singh and Sahi Ram kidnapped the prosecutrix PW-1 Kamlesh Kumari, who according to the prosecution, was a minor girl, by removing her forcibly from the lawful guardianship of her father Assa Ram. It was alleged that Arjun Singh, subjected her to illicit intercourse and also compelled her to marry him. The story is that after kidnapping the prosecutrix, she was taken by both the appellants in a maruti van to the jungle at Bhattu, where Sahi Ram left her and Arjun Singh committed rape on her, where - 3 - after he took her home with him and kept her in illegal confinement with the help of his wife Phullan Devi. He again subjected her to illicit intercourse during the night when she was illegally detained there. Both the appellants alongwith Phullan Devi were tried for the offences as noted above. Cr.Appeal No.16 of 2003. 3. Taking the case of Sahi Ram appellant first, the allegation against him is that he actively connived and assisted Arjun Singh-accused in kidnapping the prosecutrix PW-1 Kamlesh Kumari and facilitated rape on her. The role ascribed to him is that he alongwith Arjun Singh came in a maruti van to the field, where the prosecutrix and Reena Devi PW-3 were cutting grass and forcibly dragged the prosecutrix to the van. After leaving Arjun Singh and the prosecutrix in the forest, he went away from the spot alongwith the van, which was being driven by PW-15 Manohar Lal. 4. The relevant portion of the evidence linking Sahi Ram with the crime is that of PW-1 Kamlesh Kumari prosecutrix , who states that on the fateful day i.e. 6.10.1998, Arjun Singh alongwith Sahi Ram, who according to her is her “Chacha”, approached her in the field/ghasni of one ‘Doomna’, where she was working. They came to the spot around 10.00 a.m. She states that Arjun Singh accused is a Pradhan. He told her that her father was ill and was - 4 - calling her at Baijnath bus stop. She refused to accompany him as she had already met her father. At that point of time, Sahi Ram-accused, who was also sitting in the van, assured her that Arjun Singh was speaking the truth and she believed him as he was related to her being her “Chacha” (uncle). She states that she was working at a distance of about 10 feet from the road and that Reena Devi PW-3 was also present with her at that time. She then states that Sahi Ram alighted from the van caught hold of her from her arm and forcibly took her to the van and informed her that all of them were going to Baijnath, but instead drove on the road to the Colony, which passes through a “jungle”. After leaving both her and Arjun Singh, accused Sahi Ram went away from the spot. The other portion of the narration of her statement will be considered while dealing with the case of Arjun Singh. This is the only evidence against accused Sahi Ram. 5. In cross-examination, she has been confronted with the statement Ext. P.A, which is the First Information Report which was registered on the statement made by her to the police, in which it was not recorded that Sahi Ram was her uncle. The other evidence is that of PW-3 Reena Devi who is an eye witness. She states that at around 9.00/10.00 a.m in the morning, Arjun Singh came to the field in a taxi, where she and the prosecutrix PW-1 Kamlesh - 5 - Kumari were working. He told the prosecutrix that her father was ailing and she had been called by him and then stated that in case she did not trust him, she could confirm this fact from her “Chacha’, who was sitting in the van. The important part of her examination-in-chief is where she states:- “Parantu maine koi aur aadmi wahan na dekha jo van me baitha tha ya na baitha tha. Uske bad Arjun Kamlesh Kumari ko van me le gaya aur kaha ki Kamlesh Kumari ko 10.00 baje (A.M) tak vapis chhod jaunga.” “(But, I did not see any person sitting in the van thereafter Arjun took Kamlesh Kumari to the van and said that he would drop her back at 10.00 A.M.)” This is the entire evidence purportedly linking the appellant Sahi Ram with the commission of the crime. The evidence of PW-1 Kamlesh Kumari and PW- 3 Reena Devi is irreconcilable on the factum of presence of Sahi Ram in the van or at the spot. The prosecutrix ascribes an active role to Sahi Ram accusing him of getting down from the maruti van/taxi, catching her from her arm and forcing her to sit in the van, whereas Reena Devi PW-3, who is an eye witness and was working with the prosecutrix in the field, is categoric in her statement that she has not seen anybody in the van. She is totally silent about the presence of Sahi Ram. The only part of her testimony is that Arjun Singh had told the prosecutrix that she could confirm the fact of - 6 - illness of her father from her ‘Chacha’ who was sitting in the van. But in her examination-in-chief she admits that she did not see anybody sitting in the van and has not identified appellant Sahi Ram at all, which makes her statement in examination- in-chief irreconcilable with that of the prosecutrix’. In the FIR Ext. P.A, the prosecutrix says that when she refused to accompany Arjun Singh, both Arjun Singh and Sahi Ram caught hold of her by her arm and forcibly made her sit in it. There is no mention about any relationship of Sahi Ram and the prosecutrix. 6. I will now advert to the evidence of PW-6 Dr. Sudesh Kaul, who had examined the prosecutrix on 8.10.1998 i.e two days after the abduction. She records in Ext.PC, which is the Medico Legal Certificate issued by her, that the prosecutrix had disclosed that she was abducted on 6.10.1998 by some unidentified persons at 10.00 a.m. It is recorded by her in Ext.PC that “H/0 abduction on 6/10/98 by some unidentified persons at 10 AM at lower Battu, near some jungle.” There is no evidence on the record aliunde of the allegations made by the prosecutrix that Sahi Ram was related to her or to anyone of her family members. There is again no evidence of his presence at any time as testified by PW3 Reena Devi. - 7 - 7. Learned Additional Advocate General has urged that the established principle of law is that the statement of the prosecutrix should not be doubted and that she should not be treated as an interested witness. Having suffered a trauma of being physically mauled, she should not be insulted by further insisting on corroboration of her statement. True, conviction can be based on the sole testimony of the prosecutrix, however, if the evidence brought on record by the prosecution is destructive of a foundational fact, in that event, conviction cannot be based solely on the statement of the prosecutrix for the only reason that she has levelled allegations against a particular person. I will also advert to the evidence of PW-15 Manohar Lal, who was the driver of van No. HP-01-0817 purportedly used in the commission of the offence. He has not supported the prosecution case and was declared hostile. He was cross-examined at length by the prosecution, but there is nothing in his cross- examination to establish that Sahi Ram or Arjun Singh had either jointly or anyone of them, hired the taxi to commit the crime. He infact states that this taxi was hired by two women/girls. What I find from the evidence on record is that the statement of the prosecutrix on the question of her abduction is disproved by the evidence of PW-3 Reena Devi and PW-6 Dr.Sudesh Kaul. I find from the reading of the - 8 - evidence that the statements made by the prosecutrix PW-1 Kamlesh, PW-3 Reena Devi, PW-6 Sudesh Kaul and PW-15 Manohar Lal, driver of the taxi, cannot be reconciled. There is no explanation as to why the prosecutrix did not disclose the name of accused Sahi Ram even to the doctor PW-6 Dr. Sudesh Kaul. Surely, if this accused was related to her, then there was no difficulty in disclosing his name and identifying her to the doctor. In Ext. P.A., she names him, but does not say that he is related to her. Facts stated in the FIR cannot be used as substantive evidence and can only be used for corroborating or contradicting the maker as such I am not using these contradictions as the basis of any conclusions. The statement of PW-3 Reena Devi is totally destructive of that part of the testimony of the prosecutrix which says that he was present on the spot and that she was dragged to the van by Sahi Ram. In these circumstances, I hold that the learned trial Court was incorrect in assessing the evidence and holding that accused Sahi Ram was guilty of offences under Sections 366 and 363 of the Code. The fundamental tenet of the law of evidence is that a fact must be proved before criminal liability can be attributed to a particular person. Section 3 of the Evidence Act is clear when it enacts that a fact is said to be proved when, after considering the evidence before it, the Court either believes it to - 9 - exist, or considers its existence so probable that a prudent man ought to do so. 8. In the facts and circumstances of the case, I hold that there is no evidence of the involvement of the appellant Sahi Ram which fact is disproved within the meaning of Section 3 of the Evidence Act on the evidence led by the prosecution itself. He is accordingly acquitted and Criminal Appeal No. 16 of 2003 is allowed. The bail bonds furnished by him are discharged. Cr.Appeal No.1 of 2003. 9. Coming to the appeal preferred by Arjun Singh, the evidence against him is that of the prosecutrix PW-1 Kamlesh Kumari and PW-3 Reena Devi. This is to be read in conjunction with the evidence of PW-6 Dr. Sudesh Kaul and the other attending circumstances. At the outset, I note that Smt. Phullan Devi, wife of accused Arjun Singh, who was also accused of assisting her husband in the crime by facilitating the illegal detention/confinement of the prosecutrix in their house, where she was kept for one night and the accused is supposed to have committed rape on her, has been acquitted of the offences and no appeal has been preferred challenging her acquittal. It is trite that in case Phullan Devi had not helped in the detention of the prosecutrix, she could have escaped from the clutches of Arjun Singh and would not have been subjected to rape as - 10 - alleged in the house of the appellant. How, why and under what circumstances, no appeal has been preferred, is not clear from the record. I also find from the judgment of the learned Sessions Judge that he has glossed over the involvement of this lady by holding that there is no material to link her with the “imputed crime” or that she shared her intention with her husband Arjun Singh. The relevant paragraph reads as under: “40. As far as the case against accused Smt. Phullan Devi is concerned, there is no much material to link her with the imputed crime or that she shared common intention with her husband Arjun Singh in wrongfully confining the prosecutrix in his house, after he had kidnapped her. The prosecutrix qua it has deposed that after she was brought and bolted inside the room, was not permitted to come out and that time Smt. Phullan Devi and brother of accused Arjun Singh were in the house. Phullan Devi did nothing except that she was not permitted to go out. So, there is nothing on the record to link Smt. Phullan Devi with the act of her husband in wrongfully confining the prosecutrix in the house. Hence, the offence against accused Phullan Devi is not proved.” - 11 - 10. According to the prosecutrix the brother of the appellant was also present in the house but his role has remained obscured in mystery. This is indeed a strange way of analyzing the evidence. In her evidence, PW-1, Kamlesh Kumari prosecutrix has stated that when she was taken by Arjun Singh to his house “Arjun ki patni Phullan Devi and Arjun ka Bhai, jinka nam main na janati hun bhi ghar me moujud the. Phulan Devi ne kewal mujhe bahar jane se roka aur iske ilawa usne mujhe aur kutch na kiya.” “(Phullan Devi wife of Arjun and his brother whose name I do not know were also present in the house. Phulan Devi only stopped me from going out and besides that she did not do anything.)” Two things have emerged from her statement, that besides Arjun Singh, his wife who stopped her from going out, and brother of the appellant was also present in the house. Phullan Devi is supposed to have aided her husband by not allowing her to leave the house. What happened to the brother remains a mystery. The prosecution has not cared to bring anything on the record to show the role which he played in the illegal detention/confinement of the prosecutrix. 11. The statement of the prosecutrix, when considered, reveals that at around 10.00 A.M. the appellant alongwith Sahi Ram drove in a van to the field where she alongwith PW-3 Reena Devi was cutting grass in the field of one “Doomna” and asked her to - 12 - accompany him to Baijnath as her father was ailing and she was required to be with him. He also asked her to confirm this fact from Sahi Ram, who was accompanying the appellant Arjun Singh. On her refusal to sit in the van, she was forcibly caught hold of from her arms by both the accused and then made to sit in the van where instead of driving towards Baijnath, the van was taken towards Colony road and when it was near a jungle, she and Arjun Singh alighted and the van drove away. Thereafter, she says that Arjun Singh carried her on his shoulder. She started shouting for help, but nobody responded as no person was present. She then says that she was subjected to forcible sexual intercourse in the jungle. She tried to run away, but he caught hold of her shirt, which was torn in this struggle. He kept her in the jungle in the day and at night, he took her to his house where she was detained and the wife of the accused helped him in keeping her in illegal confinement. The brother of the accused was also present there. At night, she was again subjected to rape by the accused. PW-3 Reena Devi, testifies that Arjun Singh took away the prosecutrix and told PW-3 that she would be dropped by him at the field around 10.00 A.M. She further states that the prosecutrix did not return and it was only on the next day when Dihni Devi PW-5, cousin sister of the prosecutrix, came to her and she (PW-3) informed her - 13 - that the prosecutrix had gone with Arjun and had not returned. PW-6 Dr. Sudesh Kaul, who was the Medical Officer in the Civil Hospital, Baijnath, has examined the prosecutrix on 8.10.1998 at about 4.25 p.m. She stated in her testimony that : “History of abduction on 6.10.1998 by some unidentified persons at 10 a.m at Lower Bhatu near some jungle. On examination of the girl, she is of average built, well oriented, pulse 90 per minutes, blood pressured 110/80 mmg. Secondary sex characters were well developed. Menstrual history- approximate one week back as per girl’s history. No Marks of violence over body or any other place found. Local Examination The girl was wearing some salwar and kameez as per history and is stained near underwear area (Printed bluish green puls black salwar kameez) Kameez torned in front of chest and preserved. Pubic hairs not matted and also preserved. Per Vaginal Examination Vagina admits one finger, painful and stained with bloody discharge and posterior vaginal wall smear taken and slide formed. A 1mm x 1 mm laceration found over hymen at 7 O’clock positions, bleeds on touch. Hymen is torn and is not inflamed. No marks of violence over genital organs. For age verification the girl was referred to Dr.O.P Ramdeo, Radiologist. Item preserved Posterior vaginal walls pool smear taken and slide. Salwar- Kameez, Pubic hairs in vial to be sent to the Chemical Examiner by the police, handed over to lady constable Mrs. Sudershna No. 257. Opinion - 14 - The girl is exposed to sexual intercourse, however final opinion to be given after the report of the Chemical Examiner. Probable duration of injuries- Laceration over hymen within 24 hours.” I have perused the report of the Chemical examiner Ex. PB and my opinion remains the same as stated above. However, intercourse on the said day can not be ruled out.” She proved on record Ext.PC, which is the medical certificate issued by her. PW-7 Dr. O.P Ramdev examined the accused Arjun Singh and also Kamlesh Kumari for X-ray to determine her age. According to his report Ext. PH, she is aged about 17 years but is below 19 years. From the medical evidence on record, it is established that the prosecutrix is not a minor. 12. The other circumstances constituting the chain of circumstances to be considered. It is the case of the prosecution that the prosecutrix was forced to sit in the van. On this point it is the testimony of the prosecutrix alone. The part that Sahi Ram appellant had assisted/connived with the accused cannot be accepted for the reason that his involvement has been disproved by PW-3 Reena Devi. The only evidence left is that of the prosecutrix which cannot be reconciled with that of PW-3. The sequence of events as narrated is that she was taken to the forest where she was raped by Arjun Singh appellant and kept there in the day whereafter she - 15 - was taken to his house at night and was again subjected to rape. There are few broken links in the chain of evidence and that is that the time between 10.00 A.M. on 6th October, 1998 till evening of next day that she was recovered from the house of Arjun Singh which remain unexplained. The second aspect is that of the involvement of the wife and brother of the appellant Arjun Singh. It is again strange that no attempt has been made by the police to find out as to what role the brother of appellant Arjun Singh played or that he actually connived in the entire episode. It is also not clear as to whether the house of the appellant was in a populated area or whether it was an isolated place where any attempt to escape or call for help would have been futile. On the question as to whether she has been raped or not, it is the evidence of Dr.Sudesh Kaul PW-6 which is relevant. In her testimony she says that the prosecutrix was possibly exposed to sexual intercourse. However, final opinion would be given only after the report of the Chemical Examiner. The duration of laceration over hymen was within 24 hours of examination. Ex.PB is the report of the Chemical Examiner which found some blood stains on the salwar of Kamlesh Kumari but did not find any semen. Similar is the opinion regarding the vaginal smear. In Ex.PC, the doctor records that the prosecutrix was - 16 - possibly in menstruation about a week back. There were no marks of violence on any part of her body. 13. Ex.PA is the First Information Report. Learned counsel appearing for the appellant has taken me through this report in detail to show that the evidence of the prosecutrix is totally contradicted with that what she states in this report. He submits that the second alleged incident of rape at night as also the fact that she was carried on shoulder etc. did not find mention in the FIR Ex.PA and moreover she states in no uncertain terms that she started shouting loudly for help when she was abducted. These important aspects according to the learned counsel are major contradictions which would be a ground for ignoring her testimony in examination-in- chief. 14. No doubt, the First Information Report is an important document, but at the same time it cannot be used as substantive evidence. At best, it can be used to corroborate or contradict the informant. (See: Thulla Kali vs. The State of Tamil Nadu, AIR 1973 SC 501, Ravi Kumar vs. State of Punjab, (2005)9 SCC 315). It can also not be treated as an encyclopedia of facts concerning the crime. (See: Gorle’s Naidu vs. State of A.P. and Others, 2003(12) SCC 449). 15. Learned counsel has referred in some detail the judgment of the Supreme Court in Ishwar Singh vs. - 17 - State of Uttar Pradesh, AIR 1976 SC 2423, to urge that though the First Information Report is not substantive evidence, when the testimony of the witnesses is discrepant and contradicted by the First Information Report it is destructive of the case of the prosecution. In this case the Supreme Court held:- “6. … … … … … … … … But it is well established that witnesses essential to the unfolding of the narrative on which the prosecution is based must be examined. Mahabir's evidence is that on the morning of the date of occurrence he had invited Satyapal, Dharampal, Jaipal, Pritam, Ghanshyam and Chauhal Singh to settle the dispute between him and Ishwar Singh and that he had also sent Ghanshyam to call Ishwar