IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.135 of 2006 Reserved on : March 11, 2008. Decided on : 14.3.2008. Panna Lal …Appellant. Versus State of H.P. …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. M.S. Guleria, Advocate. For the Respondent : Mr. P.K. Sharma, Additional Advocate General. Surjit Singh, Judge Appellant is aggrieved by the judgment of the trial Court whereby he has been convicted of an offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.20,000/-; in case of non-payment of fine to undergo imprisonment for a further period of one year and out of the amount of fine, if realized, a sum of Rs.10,000/- has been ordered to be paid to the prosecutrix, by way of compensation. 2. Allegations on which the appellant was put on trial may be summed up thus. The prosecutrix, who was examined as PW-11 in the trial Court, was 12 years of age in the month of April, 2005. She had been admitted to a Government Primary School situated at a distance of about 1 km. from her house only a week before the occurrence, Whether reporters of the local papers may be allowed to see the judgment? …2… which took place on 4th April, 2005. On the day of alleged occurrence, she left her house in village Khamrala, as usual, at 9.45 a.m. On the way, the appellant, who was coming from the side of village Sayanjali, overpowered her and carried her to a lonely place in the fields by the side of village path and committed rape on her. After committing the rape, the appellant went away. The prosecutrix wore her Salwar and went to the school. She returned home around 1 or 2 p.m. and took bath and washed the clothes, which she was wearing at the time of the incident. Thereafter, she took her meals and went to sleep. Next day, she did not go to the school. On the third day, she again did not go to the school and complained to her mother that she was having pain in her vagina. Her mother, PW-4 Mani Devi, examined her vagina and noticed that it was bleeding. On enquiry, the prosecutrix told her mother that the appellant had dishonoured her. The mother of the prosecutrix then went to the house of the appellant. He himself was not present there, but his mother was present. When the mother of the prosecutrix complained to the mother of the appellant about the incident, she (the mother of the appellant) told her that she was not having cordial relations with the appellant and that she (the mother of the prosecutrix) herself could talk to him about the incident. That very day a brother-in-law of the mother of the prosecutrix, named Bhajan Lal, came to her house. She asked him to telephonically inform her husband, who was working those days at Matyana, about the incident. Bhajan Lal tried to contact the father of the prosecutrix on telephone but could not succeed. The mother of the prosecutrix waited for the return of her husband. On 13th April, 2005, the appellant went to the house of the prosecutrix and threatened her and her mother and hurled abuses at them. The same day, the mother of the prosecutrix left for …3… the Police Station. The distance between the village of the prosecutrix and the Police Station being 42 kms., the prosecutrix and her mother stayed for the night in village Banach at the house of the parents of the mother of the prosecutrix. Next day, they reached the Police Station at 8 p.m. and lodged the report. The entire distance was covered by the prosecutrix and her mother on foot. Report was lodged at the Police Station by the prosecutrix, which was recorded in the form of FIR Ex. PK. 3. Police got the prosecutrix medically examined. PW-1 Dr. Renu Behl, who conducted the medical examination, found an old and healed tear of hymen at 5 O’clock position. The doctor also noticed two healed tears at 11 O’clock and 10 O’clock position below urethra. She gave the opinion that the possibility of the prosecutrix having been subjected to sexual intercourse within ten to eleven days of her examination, which was conducted on 15th April, 2005, could not be ruled out. Police collected evidence about the age of the prosecutrix. As per Panchayat record, her date of birth was 6th July, 1993. Ossification test of the prosecutrix was also conducted and it was found that her skeletal age was below 14 years. 4. Challan was filed against the appellant for offences punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and Section 376 of the Indian Penal Code. The trial court charged the appellant with both the offences. At the end of the trial, he was acquitted of the charge under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but convicted of the offence punishable under Section 376 of the Indian Penal Code and sentenced as aforesaid. …4… 5. We have heard the learned counsel for the appellant and perused the record. 6. Learned counsel for the appellant urged that the testimony of the prosecutrix (PW-11) and her mother PW-4 Mani Devi does not inspire confidence. He stated that the statements of the prosecutrix and her mother were full of contradictions and discrepancies, besides being unnatural. He also submitted that there was a long delay of 14 days in reporting the matter to the police, which had not been satisfactorily explained and this further weakened the testimony of the prosecutrix and her mother. Learned counsel drew our attention to various contradictions and infirmities in the testimony of the prosecutrix and her mother, which are being noticed together with their impact on the prosecution story hereinafter. 7. The case of the prosecution, according to FIR Ex. PK as also as per testimony of PW-11, the prosecutrix, and PW-4, her mother, is that the prosecutrix left for the school on the fateful day at 9.45 a.m. (per deposition of PW-4 Mani Devi, the mother) and the incident took place at 10 a.m. (per testimony of PW-11, the prosecutrix). The distance between the house of the prosecutrix and the school is 1 to 3 kms. The mother says that it is 1 km., but the prosecutrix says that it is 3 kms. Even if it be assumed that the distance is only 1 km., the time required for covering the distance on foot (admittedly, the prosecutrix was going on foot) cannot be less than 15 minutes. The prosecutrix admits in the very opening sentence of the cross-examination that she reached the school on the day of the incident at 10 a.m. Now, if she left the house at 9.45 a.m. and reached the school at 10 a.m., covering a distance of 1 km. on foot, where was the time for the commission of the offence of rape. …5… 8. Again, PW-4 Mani Devi, the mother of the prosecutrix, has stated that when on the third day the prosecutrix complained of pain in the vagina, she noticed that it was bleeding. That means, on the day of the incident the vagina was supposed to be bleeding profusely (because even on the third day it was found to be bleeding, per testimony of PW-4 Mani Devi, the mother of the prosecutrix). However, the prosecutrix says that she attended the school for the whole day, even after the break on the day of incident and it was only after the closure of the school that she walked back to her house in the company of other children. Now, if vagina was supposedly bleeding profusely, her clothes, particularly the Salwar and the lower portion of the shirt, were supposed to get drenched in blood. That would have definitely attracted the attention of other children and the teacher. Admittedly, the teacher and the other students did not notice any blood, because not only that there is no evidence to this effect, rather the evidence in the form of the testimony of the prosecutrix positively suggests that no blood was noticed, because she says that she continued to attend the class, having twenty students, till the school closed for the day. Had her clothes been smeared with blood, the teacher would have sent her back home, immediately. 9. The shirt and the Salwar of the prosecutrix were taken into possession during the investigation of the case. The same were sent to the Chemical Examiner. No stains of blood were found thereon, per report Ex. PX of the Chemical Examiner. The prosecution tried to show that the shirt and the Salwar had been washed by the prosecutrix on the very day of the incident on return from school and that is why no stains of blood were found thereon by the Chemical Examiner. This fact was testified by PW-4 Mani Devi, the mother of the prosecutrix. …6… However, contradictions in the testimony of PW-4 Mani Devi and the prosecutrix (PW-11) with respect to this aspect of the matter and the contents of the seizure memo. Ex. PL, vide which clothes were taken into possession, leave no doubt that the testimony of the mother of the prosecutrix, as also the prosecutrix, to the effect that the clothes had been washed is not correct. Ex. PL, the seizure memo., nowhere records that the shirt and the Salwar had been washed after the incident. Rather it is specifically mentioned in Ex. PL that both the Salwar and the shirt bore white stains, meaning thereby that they had not been washed. In the FIR, copy Ex. PK, also there is no mention of the washing of the clothes. PW-4 Mani Devi, the mother of the prosecutrix, testified that the clothes had been washed by the prosecutrix herself after taking bath, but the prosecutrix, in her cross- examination, categorically stated that the clothes had been washed not by her but by her mother. It may be stated here that the prosecutrix’s fingers on one hand are deformed and because of that her mother helps her even in taking bath. Reference in this behalf may be made to the testimony of the prosecutrix as also her mother PW-4 Mani Devi. Now, if the prosecutrix is dependent upon her mother even for taking bath, the question of her having washed the clothes does not arise. It is clear that the story of the clothes having been washed, introduced during the trial, is nothing but an attempt to explain the absence of blood stains on the Salwar and the shirt of the prosecutrix. 10. PW-4 Mani Devi, the mother of the prosecutrix, testified that the prosecutrix returned home that day at 1 or 2 p.m., but the prosecutrix herself got recorded in the FIR that she returned in the evening, meaning thereby that she remained in the school throughout the day, after the alleged occurrence. It is not believable that the …7… prosecutrix, a girl of very tender age, having been raped in the morning on way to the school and the vagina, as a consequence of rape, bleeding profusely, would remain at the school till very late in the evening. 11. The conduct of the prosecutrix and her mother is also quite unnatural. It is not the case of the prosecution that the appellant had threatened the prosecutrix against reporting the matter to her mother or anybody else but still she did not narrate the incident to her mother immediately. It was on the third day of the alleged occurrence that she allegedly apprised her mother of the occurrence and that too on her noticing that the vagina was bleeding. The conduct of the mother is also abnormal. According to her, the prosecutrix returned home early that day and took bath and washed her clothes without any help from her, even though earlier she used to be helped by her even in taking bath because of deformity of one hand, but she did not enquire as to why she had taken bath and washed her clothes. Not only this, she did not make any enquiry, when on the next following day and even the third day when the prosecutrix missed the school, as to why she had done so. 12. There is delay of 14 days in lodging the FIR. Explanation given in the FIR is that the prosecutrix and her mother are poor and did not have money to travel by bus. During the course of the trial, neither the prosecutrix, who appeared as PW-11, nor her mother, who appeared as PW-4, testified that they did not have the money to pay the bus fare. In any case, the aforesaid explanation given in the FIR cannot be said to be correct, because when the prosecutrix and her mother ultimately went to the Police Station, to lodge the report, they …8… travelled on foot. If they could have travelled on foot ten days after the occurrence, why did not they travel earlier, remains unexplained. 13. A futile attempt was made to explain why did they travel on foot to the Police Station on 13th and 14th. The mother of the prosecutrix testified that on 13th, the appellant came to their house and threatened and abused them and, therefore, on that very day she left the village and reached her mother’s place and on the next following day walked to the Police Station in the company of the prosecutrix. In the FIR, Ex. PK, there is no mention of this fact. Not only this, the prosecutrix in her testimony as PW-11 says that the appellant came to their house 2/3 days after the incident, accompanied by a ward member. She does not say that the appellant administered any threat or hurled any abuses. She has stated that he only denied the accusation. She nowhere says that on the day when they left the village for her mother’s place, the appellant came to their house and threatened them and also hurled abuses. 14. It has come in evidence that once the mother of the prosecutrix had made accusation of assault with intent to outraging her modesty against one Mithu, to the Panchayat, but then did not pursue that complaint and instead withdrew the complaint after accepting compensation from him. Appellant is a god-brother of said Mithu’s wife, named Kanta Devi. These facts are stated by the mother of the prosecutrix in her testimony as PW-4. It is also admitted by the prosecutrix and her mother that the house of Mithu is situated adjacent to their house and the appellant often visits Mithu and his wife. Appellant denied the prosecution allegations and took the plea that he had been falsely implicated because of his closeness to said Mithu and his wife Kanta Devi. …9… 15. Taking into consideration the above discussed position, we are of the considered view that the charge of rape, against the appellant, does not stand established beyond reasonable doubt. Hence, the appeal is accepted. Judgment of the trial Court, convicting and sentencing the appellant for the offence of rape, punishable under Section 376 of the Indian Penal Code, is set a side and the appellant is acquitted. He being in jail, serving out the sentence, is ordered to be set at liberty forthwith, in case his detention is not required, in any other case. Appeal stands disposed of. ( Surjit Singh ), J March 14, 2008(sd) ( Surinder Singh ), J