IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A.No.233 of 2001 Reserved on 25.2.2008 Date of decision 7.3.2008 Yash Pal Appellant Versus State of H.P. Respondent Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant: Mr.R.K.Gautam, Senior Advocate, with Mr.Naveen Kumar Bhardwaj, Advocate. For the respondent: Mr. Rajinder Dogra, Addl. Advocate General & Mr.Anil Kumar Jaswal, Dy. Advocate General Rajiv Sharma,J. The accused Yash Pal has filed this appeal against his conviction in Sessions Trial No.2-NL/7 of 2001 by learned Additional Sessions Judge; Solan, whereby learned Additional sessions Judge by judgment of conviction and sentence dated 3.5.2001 has sentenced the accused under Section 341 IPC to undergo imprisonment for a term of one month and fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment of 7 days. The accused was also convicted and sentenced under section 511 IPC to undergo 4 years simple imprisonment and fine of Rs.10,000/- and in case of default of payment of fine the accused was to undergo simple imprisonment of 6 months. The brief facts as gathered from the judgment of the trial court are that on 22.7.2000 at about 6.30 p.m. at a distance of about ½ kilometer from Village Bhiper accused had wrongly restrained the prosecutrix, namely, Kaushalya Devi (PW-1) and snatched the gold rings from the ears of the prosecutrix and also forcibly attempted to commit rape upon the 1 Whether reporter of local papers is allowed to see the judgment? No 2 prosecutrix against her will and consent. The charge was framed against the accused under Sections 341,382, 376 and Section 511 IPC. The prosecution had examined 11 witnesses in all to prove its case. The accused was examined under Section 313 Cr.P.C. He was sentenced and convicted under Sections 341 and 511 IPC as mentioned here in above. Mr. R.K.Gautam, senior counsel assisted by Mr. Naveen Kumar Bhardwaj, had submitted that the trial judge has misconstrued and misinterpreted the evidence. The prosecution has miserably failed to bring home the guilt against the accused. There are unexplained gaps in the prosecution story which are highly improbable. The prosecution story does not inspire confidence. There is no legal evidence on record to prove the guilt of the accused. Mr. Rajinder Dogra, learned Additional Advocate General had supported the impugned judgment and has submitted that the prosecution has proved its case against the accused. He has primarily relied upon the statement of PW-1 and other material on record. I have heard the learned counsel for the parties and also gone through the record of the case carefully. The prosecutrix had submitted an application to the Pradhan of Gram Panchayat, Ratwari for taking action against the accused. As per the contents of the complaint FIR Ex.PW-9/A was registered at Police Station, Nalagarh against the accused. The S.H.O. Nalagarh on 23.7.2000 vide Ex. PW-7/A submitted application to the Medical Officer, Civil Hospital, Nalagarh for medical examination of prosecutrix Kaushlya Devi. The spot map was prepared vide Ex.PW-10/A. Ex. PW-1/B was signed jointly by the prosecutrix and her husband Mohinder Singh (PW-5) stating therein that she could not go to Solan for medical examination as her children are small. The application for medical examination was submitted by the police on 29.7.2000 pursuant to which she was medically examined and MLC Ex.PW-10/E dated 29.7.2000 was issued. In this 3 background the statements of material witnesses are required to be examined carefully by this court. PW-1 had stated that the accused had stopped her on 22.7.2000 at about 6.30 p.m. She has further stated that the accused caught hold of her and threw her on the road and thereafter sat on her breast and tried to strangulate her. The accused demanded that she should part with the ornaments which she was wearing. The accused removed her ear rings. She has further deposed that the accused after breaking string of her salwar wanted to commit rape. On her raising alarm, Gopal and Shyam Lal came to her rescue and seeing both of them, the accused ran away. She narrated the whole incident to Pradhan Nanki Devi and consequently FIR was registered. She has admitted in her examination-in-chief that the police had taken into possession her salwar after 8 days which she was wearing on the day of incident. She has further stated that the witnesses were sitting at a distance of 100 meters and have witnessed the incident. She has further stated that the witnesses had come after 5-10 minutes and till then she was sitting on the road. PW-2 Smt. Nanki Devi has stated that she was the Pradhan of Gram Panchayat Ratwari a complaint Ex.PW- 1/A was made to her by the prosecutrix and her husband. She further deposed that the prosecutrix had told her that the accused Yash Pal had broken the string of her salwar. PW-3 Ram Gopal was declared hostile. He has stated that the prosecutrix had come to him and told that a boy was teasing her but she did not know the name of the boy. Similarly, PW- 4 Shyam Lal was declared hostile. PW-5 Mohinder Singh the husband of the prosecuturix has deposed that the prosecutrix had narrated him the entire incident dated 22.7.2000. He with his wife went to the Pradhan and consequently FIR was registered. He has further stated that his wife Kaushlya Devi could not be examined at Nalagarh hospital since there was no lady doctor available and she was advised to go to Solan hospital for medical examination. He has further stated that they refused to go to Solan hospital since they were required to look after their children. He has 4 admitted that he had handed over the salwar of his wife which was torn and string of which was also broken to the I.O. on 30.7.2000 at Police Post Joghon in the presence of Shyam Lal and Ram Karan (PW-6 and PW-8 respectively). The same was taken into possession vide memo Ex.PW-5/A. PW-6 Shyam Lal has stated that the salwar was taken into possession by the police on 30.7.2000. PW-7 A.K.Tiwari, Medical Officer, C.H.C. Nalagarh has stated that he directed the Medical Officer to conduct her medical examination but lady doctor was not available at Nalagarh at that time. However, he stated that he examined the prosecutrix to see whether there were any injuries marks on her body or not. He did not find any injuries over the left and right ear of the prosecutrix. PW-8 Ram Karan has been cited to prove the recovery of salwar and string. PW-9 M.P. Bam, the I.O. has given the detail how the FIR was registered and the prosecutrix was taken to the Civil Hospital Nalagarh for medical examination. PW-10 Kamal Chand is the Incharge, Police Post Joghon He has taken into possession the salwar and string produced by Mohinder Singh the husband of the prosecutrix. PW-11 Dr.Yuv Raj Suri had examined the prosecutrix on 29.7.2000 at 1.30 p.m. He stated that he found the prosecutrix was conscious, co-operative and well oriented to time, place and person. There was no injury or scar mark on her body and has further stated that there was no abrasion on her body. There is a gap in prosecution story as well as there are material contradictions in the statements of PW-1, PW-3 and PW-4. The incident is dated 22.7.2000. It was necessary for the prosecution to get the prosecutrix medically examined immediately on 23.7.2000 itself or the following day. Despite the endorsement made by the doctor at Nalagarh that the prosecutrix be medically examined at Solan she refused to go to Solan by assigning the reason that she has to look after her minor children. It is only on 29.7.2000 that she was medically examined by PW- 11. PW-11 had examined the prosecutrix on the basis of Ex.PW-10/D. It is mentioned in Ex.PW-10/D that the prosecutrix was not interested to 5 be medically examined but it was necessary to get her medically examined. The prosecution has failed to explain the delay why the prosecutrix has been medically examined on 29.7.2000 though the incident is dated 22.7.2000. If the prosecutirx had shown her unwillingness to go to Solan she could be taken to PHC Joghon within 48 hours. The prosecutrix has not received any injury as is evident from the statement of PW-11. She was bound to receive some injuries if according to her own statement she was caught hold of and thrown on the road and the accused had sat on her breast. It has also come in Ex.PW-10/B that the prosecuturix was reluctant to be medically examined. She has stated that the salwar which she was wearing on the day of incident i.e. 22.7.2000 was taken into possession by the police on 30.7.2000 when the same was produced by her husband before the police. The prosecution had not explained why the salwar and string could not be taken into possession immediately after the registration of the case on the basis of the contents of the FIR. PW3 and PW-4, who according to PW-1 had rescued her, were declared hostile. There were no eye witness to the incident and the court has to cautiously examine the statement of PW-1 being the sole witness of the incident dated 22.7.2000. The statement of PW-1 cannot be relied upon in absence of corroboration by other witnesses. The fact that she had been medically examined on 29.7.2000 and as per the statement of PW-11 there were no injuries on her body coupled with the fact that the salwar and broken string were also taken into possession only on 30.7.2000 makes the prosecution story highly improbable. It is true that as per Ex.PW-10/B the prosecutrix had shown her unwillingness to go to District Hospital, Solan but there was sufficient time between 23.7.2000 to 29.7.2000 to get the medical examination of the prosecutrix conducted from the Government hospital. The statement of PW-1 prosecutrix does not inspire confidence in view of the contradictions as noticed above. Her statement could be relied upon if she had been medically examined at the 6 earliest and her clothes were taken into possession within a reasonable time. The prosecution has failed to prove its case against the accused beyond reasonable doubt. The learned trial court has not properly appreciated the evidence on record and has erred in convicting and sentencing the accused. The impugned judgment is thus liable to be set aside. In view of the above discussion, the appeal is allowed, the judgment of conviction and sentence dated 3.5.2001 passed by the learned Additional Sessions Judge, Solan in Sessions Trial No.2-NL/7 of 2001 is set aside. The appellant is acquitted of the charge. The fine if any deposited by the accused be refunded to him immediately. March 7, 2008(g) ( Rajiv Sharma ), J.