IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.232 of 1995 Decided on : August 28, 2009 State of H.P. …Appellant. Versus Bansi Lal …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 : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. B.S. Atri, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 19th April, 1994, of Sessions Court, whereby respondent Bansi Lal, who was charged with and tried for offence, under Section 376 of the Indian Penal Code, has been acquitted. 2. Prosecution case, as it emerges from the evidence on record, is like this. On 3rd August, 1992, a 4½ years old daughter of PW-1 Pyas Mani, accompanied by her younger sister, aged about two years, went to Balwari School, situated at a distance of half a kilometer from her home. The daughters of PW-1 Pyas Mani left the house around 9 a.m. Around 12.30 p.m., PW-1 Pyas Mani went to Whether reporters of the local papers may be allowed to see the judgment? …2… fetch water from a public tap, situated close to a point where two paths cross each other. When she was a little away from the tap, she saw the respondent mounted on some child. At that time he was not wearing his pants. PW-1 Pyas Mani went to the spot and saw that the child was her own daughter, aged about 4½ years, who earlier, in the morning, had gone to Balwari School, in the company of her younger sister. On seeing Pyas Mani approaching, respondent wore his pants and took to heels. PW-1 Pyas Mani picked up her daughter and noticed that she had blood on and around her vagina. The girl was crying. She brought her home and narrated the incident to PW-2 Thakuru Devi, her sister-in-law, who alone was at home at that time. Husband of PW-1 Pyas Mani had gone to work as mason. After about half an hour, PW-1 Pyas Mani took her daughter to the Police Post at Sangla and lodged report, which was entered in the Rojnamcha. Copy of the entry is Ex. PW-1/A. The girl was got medically examined by the police from PW-9 Dr. Brij Sharma. Doctor noticed an abrasion on the medial side of thigh. He also noticed tenderness and redness of vulva. Clotted blood was also noticed on the margin of labia majora. Case was formally registered vide FIR Ex. PW-5/A, on the basis of report, copy Ex. PW-1/A, lodged by PW-1 Pyas Mani, at the Police Post. 3. Salwar of the prosecutrix, which got stained with blood, was sent to the Chemical Examiner, who, vide report …3… Ex. PW-12/B, opined that it bore stains of human blood. Underwear of the respondent was also sent to the Chemical Examiner. Stains of human semen were noticed on the same. Respondent was also got medically examined and PW-9 Dr. Brij Sharma opined that there was nothing suggesting that the respondent was incapable of performing sexual intercourse. 4. On completion of investigation, challan was filed against the respondent in the Court of concerned Judicial Magistrate, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. 5. Respondent took the plea that he had been falsely implicated, on account of enmity. However, he did not spell out the cause of the alleged enmity nor did he state what kind of enmity was there between him and the prosecutrix. 6. Learned trial Court held that the place of occurrence was very close to a thoroughfare and near a point where two public paths cross each other and it was highly improbable that the said place would have been chosen for committing heinous crime of rape. Learned trial Court also observed that instances of false implication in rape cases have come to the notice of the Courts. Another reason, which has weighed heavily with the learned trial Court, is that doctor’s evidence does not clearly suggest …4… that there was penile penetration, because no injury was noticed either on or around the vagina of the prosecutrix or the male organ of the respondent. 7. Prosecution examined PW-10 Jagar Sen, who testified that the respondent had made extra-judicial confession to him. Learned trial Court has disbelieved the testimony of the witness, holding that according to him confession was made, at the site of a fair, where many people were roaming about and such a place could not have been chosen by the respondent, for making confession, especially when he did not have any special relationship or bondage with PW-10, so as to repose confidence in him. 8. Another reason given by the trial Court to acquit the respondent is that Anaganwari Teacher, DW-1 Sangmo, examined by the respondent, testified that on the relevant date, Anganwari School was closed and, therefore, there was no question of the prosecutrix having been sent to the School, on that day, by her mother. 9. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and gone through the record. 10. PW-1 Pyas Mani, the mother of the prosecutrix, very categorically stated that she had sent the prosecutrix, accompanied by her younger sister, to the Balwari School, on the fateful day and around 12.30 p.m., when she was going to fetch water and reached near the village tap, she …5… saw the respondent lying on a child and when she reached near the spot, she saw that it was the respondent, who had removed his pants and was mounted on her daughter, aged about 4½ years. She also stated that her daughter was crying and saying Amma-Amma. Vague suggestions were thrown to the witness that no incident had taken place nor had she noticed any and that she had falsely implicated the respondent, on account of enmity. However, it was not suggested what kind of enmity was there between her and the respondent and what was the cause of such enmity. Therefore, respondent’s plea that he has been falsely implicated, on account of enmity, cannot be accepted. 11. Testimony of PW-1 Pyas Mani is corroborated by PW-2 Thakuru Devi, her sister-in-law, who has stated that on 3rd August, 1992, prosecutrix and the younger sister of the prosecutrix, aged about two years, were sent to the School, in the morning, and that around 12 or 12.30 p.m., PW-1 Pyas Mani returned home, carrying the prosecutrix in her lap and told that the respondent had been seen committing sexual act with her and that on seeing her (PW-1 Pyas Mani), the respondent fled from the spot. 12. Testimony of PW-1 Pyas Mani is further corroborated by PW-10 Jagar Sen, an independent witness, who has stated that on 3rd August, 1992, he had heard that the daughter of Jai Ram (Jai Ram is the father of the prosecutrix) had been sexually assaulted by the respondent …6… and that on the same day (the day of occurrence), respondent met him near a temple and when he asked him, about the incident, he confessed that he happened to commit the wrongful act. The witness denied the suggestions put to him, in the cross-examination, that he was inimically disposed towards the respondent. Suggestion of enmity thrown to the witness was as vague as was put to PW-1 Pyas Mani and, therefore, it cannot be said that the witness has any enmity with the respondent or any other motive to falsely implicate him. 13. Medical evidence also corroborates the version testified by PW-1 Pyas Mani, the mother of the prosecutrix. PW-9 Dr. Brij Sharma, who medically examined the prosecutrix and the respondent, testified that he noticed an abrasion on the medial side of thigh of the prosecutrix and also clotted blood on the margins of labia majora. Further, he stated that there was tenderness and redness of vulva. As regards, the medical examination of the respondent, he stated that he did not notice any smegma under the prepuce of the male organ of the respondent. Testimony of PW-9 Dr. Brij Sharma suggests that penile penetration as such may not have taken place, but attempt to rape had definitely been made. 14. The aforesaid evidence, in our considered view, proves the case of the prosecution against the respondent, to the hilt. …7… 15. Reasons given by the learned trial Court are imaginary and superficial. Incident had taken place in a remote tribal village. Villages in tribal areas are sparsely populated and the houses are generally not in clusters. They are situated at considerable distance. On account of sparse population, thoroughfares usually remain deserted, especially during mid-day, when all the villagers are supposed to be busy in their agricultural fields or in other pursuits of earning livelihood. It may be noted that unlike in plains, where the peasants normally remain indoors during mid-day, owing to heat, in higher Himalayas (Sangla Valley is in higher Higher Himalayas) where mornings and evenings are always cold due to heavy snowfalls, farmers work in the fields during day time. Therefore, there was nothing unusual in the respondent’s choosing a place by the side of a village path, for committing the criminal act. 16. Medical evidence, as already noticed, may not be indicative of the actual penile penetration, but it does prove, beyond reasonable doubt, that attempt was made. There was an abrasion on the medial aspect of the thigh. Also, there was tenderness and redness of vulva. Doctor, namely PW-9 Brij Sharma, very categorically stated that in the case of sexual assault on a child often the offender tries to gratify his lust by penetrating his male organ between the thighs of the child. So, the reasoning given by the trial …8… Court that the medical evidence does not corroborate the prosecution version cannot be accepted. 17. Reason given by the trail Court for rejecting the testimony of PW-10 Jagar Sen is also not correct. Respondent did not make the confession to the witness, on his own, but it was only when the witness confronted him with what he had heard (about the incident), that he came out with the confession. Since the witness came across the respondent, at the site of the fair, and asked him about the incident there, this cannot be a for disbelieving his testimony. 18. Trial Court has also placed reliance upon the testimony of PW-1 Zangmo, Teacher of Anganwari School, to disbelieve the prosecution version. The witness testified that on 3rd August, 1992, School was close and no child had attended it. Statement of the witness cannot be made a ground to disbelieve the entire prosecution story. The witness admitted in the cross-examination that as a matter of fact it was not a holiday on 3rd August, 1992, but she mistakenly assumed the date to be a holiday and because of that neither she attended the School nor did any child attend it. Now, when the witness had not gone to the School herself that day, how could she have assumed and testified that no child had come to the School that day. Since it was not a holiday on that day, it is quite likely that some parents, if not all, sent their children to the School. …9… So, in our view, the trial Court was not right in doubting the prosecution version, on the strength of the testimony of DW-1 Zangmo. In view of the aforesaid discussion, judgment of the trial Court can not be upheld, being perverse. Consequently, we accept the appeal, set aside the judgment of the trial Court, whereby respondent had been acquitted and convict the respondent of offence of attempt to commit rape, punishable under Section 376, read with Section 511 of the Indian Penal Code. He be produced in person for being heard on the quantum of sentence, on 16th September, 2009. ( Surjit Singh ), J August 28, 2009(sd) ( Surinder Singh ), J