IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 146 of 1998 Decided on : March 20, 2010 State of H.P …Appellant Versus Mast Ram …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ramesh Thakur, Assitant Advocate General. For the Respondents : Mr. Ajay Sharma, Advocate. Surjit Singh, Judge (Oral) This appeal by the State is directed against the judgment, dated 23.6.1997, of learned Sessions Court, Kangra at Dharamshala, whereby respondent Mast Ram, who was tried for offence of rape, under Section 376 IPC, has been acquitted. 2. Case of the prosecution, as per evidence on record, is that on 2.10.1995 around 9 p.m., PW-5 Gopali Singh, hailing from a village in Bulandshehar District of Uttar Pradesh, accompanied by his minor daughter aged about 13 years, who shall hereinafter be referred to as ‘prosecutrix’ or ‘PW-4’, a son and some other persons of his village/area, including PW-6 Nowat Singh, de-boarded a train at Kangra. He accompanied by his daughter, son and Whether reporters of the local papers may be allowed to see the judgment? …2… other persons came to Kangra to pay obeisance at the temple of Brijeshwari Devi. All of them took their meals and made arrangement for spending the night at platform. Around 10 p.m., a man went to the place at the platform, where PW-5 Gopali Singh alongwith his daughter, son and other persons accompanying him, was present and told that he was Chowkidar of Railway Station and his name was Mast Ram and that they (Gopali Singh and his companions) could go to sleep without any fear or apprehension, as nobody would be touching their belongings and baggage. On assurance by that man, PW-5 Gopali Singh, his companions, son and the daughter all went to sleep. 3. Around midnight, the man, who had told that he was the Chowkidar at the Railway Station, physically lifted the sleeping daughter of PW-5 Gopali Singh, i.e. the prosecutrix (PW4), who was then aged about 13 years. The girl, it appears, was in deep sleep, when lifted by the man. The man carried her to a lonely place. On the way, the girl woke up and tried to raise alarm, but her mouth was gagged. She recognized the man to be the same, who had approached them, when they were preparing to go to sleep and had assured that that was a safe place for sleeping. The man carried the girl to a circular platform, raised around a big mango tree. There he spread a blanket and made the girl lie on the same and then committed rape on her. The girl returned to the railway station about an hour …3… or so, after having been lifted away therefrom and started crying, on seeing her father asleep. Her father woke up on hearing cries and made inquires. She told her father that the man, who claimed to be the Chowkidar, had taken her to a lonely place and committed rape on her. Father of the prosecutrix, namely PW-5 Gopali Singh, approached the Station Master PW-7 Brij Lal, who then called PW-8 Partap Singh, who worked as Water Carrier at the Railway Station. Partap Singh had earlier, on the relevant night, been approached by respondent Mast Ram at the railway station for delivery of some goods booked by him at Temple Railway Station. He informed the Station Master PW-7 Brij Lal that he knew one person by the name of Mast Ram, who met him at the railway station that very night. Then search started for the respondent. He had his in-laws’ house near the railway station. Prosecutrix was taken by PW-8 Partap Singh and Railway Protection Force people to the house of the in-laws of respondent, where a photograph was there. It was framed. From that photograph prosecutrix identified the respondent to be the main who had committed beastly act. 4. Matter was reported to the police on 4th October, 1995. FIR Ext. PW4/A was registered at Police Station, Kangra. Prosecutrix was got medically examined. PW-1 Dr. Rama Sharma conducted the medical examination. She found that the prosecutrix been recently subjected to sexual …4… intercourse, as her hymen was torn and edges were read and tender and vagina was also red and tender. Skeletal age of the prosecutrix was determined by PW-3 Dr. Rama Kant Mahajan. According to him, age of the prosecutrix was 15 to 17 years. Police collected evidence regarding date of birth of the prosecutrix. It took into possession copy of entry in Parivar Register, per which her date of birth is 12.3.1982. 5. Respondent, in his statement under Section 313 Cr. P.C., denied that he had gone to railway station on the relevant night or that he had committed the alleged crime. He stated that PW-8 Partap Singh and PW-9 Vijay Kumar, who ran a Dhaba near Railway Station, were inimically disposed towards him, because he had disputes with them, with regard to some landed property and, so, they had falsely implicated him in this case. 6. Learned trial Court concluded that the identity of the respondent, as the person who committed rape on the prosecutrix, was not established, beyond reasonable doubt and consequently, judgment of acquittal was passed. 7. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and perused the record. 8. We may, at the very outset, observe that the learned trial Court has taken a lopsided view in concluding that the respondent was not identified as the person, who …5… perpetrated the crime. To come to this conclusion, learned trial Court has analyzed the testimony of the prosecutrix alone in which, of course, she stated that she identified the respondent to be the man as offender, when he was shown to her by the police, but that was not the end of the matter. Prosecution had led some other evidence, which remained un-challenged and is quite sufficient to come to a definite conclusion that it was the respondent, who committed the crime. The said evidence, when analyzed together with the testimony of the prosecutrix, establishes the identity of the respondent as the perpetrator of the crime, to the hilt. 9. Prosecution examined PW-8 Pratap Singh, employed as a Water Carrier at the Railway Station. The witness, in no uncertain terms, testified that the respondent met him at the railway station on the fateful night before 8 p.m. and even asked him to help him in getting, certain goods booked by him, delivered to him at the Temple Railway Station. This part of the testimony of PW-8 Partap Singh remained unchallenged. There should be no reason to disbelieve this testimony, which fully establishes the presence of the respondent at the railway station on the relevant night. PW-8 Partap Singh further testified that he left the railway station for his place of residence at 8 p.m. and till then the respondent was there. This part of the testimony of PW-8 Partap Singh was also not subjected to cross-examination. …6… 10. PW-9 Vijay Kumar, who runs a Dhaba, near the railway station, also testified that the respondent was seen near railway station around 7 p.m. Testimony of PW-7 Vijay Kumar to this effect also remained unchallenged, as no suggestion qua this part of his testimony was put to him. No suggestion was thrown to either PW-8 Partap Singh or PW9 Vijay Kumar that they had any dispute regarding land with the respondent or they had any other axe to grind to falsely implicate him. 11. PW-5 Gopali Singh, father of the prosecutrix, very categorically stated that when they were preparing to go to sleep at the platform, respondent, who disclosed his name as Mast Ram, told him and his companions that he was Chowkidar and their belongings and baggage were secure at the platform and they could go to sleep, without any worry. To the similar effect is the testimony of PW-6 Nowat Singh, a companion of PW-5 Gopali Singh. This part of the testimony of the two witnesses was also not subjected to cross-examination and, therefore, we see no reason to disbelieve the same. 12. Prosecutrix also stated that a man, who disclosed his name to be Mast Ram and also claimed to be the Chowkidar at the platform, had appeared, when they were preparing to go to sleep and had assured them that that was a safe place for them and their belongings and that it was that very man, who carried her to a lonely place …7… from the platform by physically lifting her and then committed rape on her. Statement of the prosecutrix is corroborated not only by the aforesaid evidence, in the shape of depositions of PW-5 Gopali Singh, PW-6 Nowat Singh, PW-8 Partap Singh and PW-9 Vijay Kumar, but also by the contents of FIR Ext. PW4/A, in which it is very categorically recorded that a man, who claimed to be the Chowkidar at the platform, had assured them, before they went to sleep, that their baggage and belongings were safe and they could go to sleep, without worrying about their luggage and that it was that very man, who had committed rape on her. 13. Aforesaid evidence regarding the identity of the respondent is further corroborated by the fact that the respondent made a disclosure statement leading to the recovery of blanket Ext. P-10, on which the prosecutrix was laid before being ravished. Respondent had left the blanket on the relevant night with PW-11 Sher Singh. He made disclosure statement to PW-19 ASI Des Raj that he had kept the blanket with PW-11 Sher Singh. Record of that statement is Ext. PW11/A. Blanket was recovered from PW-11 Sher Singh, on the basis on that statement. PW-11 Sher Singh, while in the witness box, in no uncertain terms testified that the blanket had been left with him by the respondent on the fateful night. …8… 14. In view of the aforesaid overwhelming and unchallenged evidence, adduced by the prosecution, we have no doubt in our mind that the view taken by the trial Court that the identity of the respondent does not stand established is perverse. 15. Reasoning given by the trial Court is that as per FIR, the culprit was a dark complexioned man with trimmed beard, but the respondent was a fair complexioned man and also did not have any beard. We do not find anything from the record of the trial Court, suggesting that the respondent is a fair complexioned man. On the contrary, we find from the record of the Challan file, submitted by the police, that the respondent is a dark complexioned man. On the Challan record, there is a certificate of identification of the respondent in which complexion of the respondent is recorded as dark. Certificate of identification, prepared by the police, is supposed to be authentic, because it is on the basis of the description of the alleged accused, given in this certificate, that the accused can be located, in case he absconds or does not make himself available during trial. 16. In view of the above stated position, we hold that the respondent is guilty of the offence of rape, under Section 376 IPC. Consequently, appeal is accepted. Judgment of the trial Court, acquitting the respondent is set aside. Respondent is convicted of offence of rape, under Section 376 IPC. He be produced in the Court for being …9… heard on the question of quantum of sentence. Non- bailable warrant of arrest be issued against him. He shall be produced before us on 31st March, 2010. (Surjit Singh), J. March 20, 2010 (ss) (Rajiv Sharma), J.