IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 374 of 1993 Date of decision: 5.03.2008 State of Himachal Pradesh ... Appellant Versus Prem Chand & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the appellant: Mr. P.K. Sharma, Additional Advocate General with Mr. J.S. Guleria, Law Officer. For the respondents: Ms. Vidushi Sharma vice Mr. R.K. Sharma, Advocate, for respondent No. 1. Mr. D. Dadwal, Advocate, for respondents No. 2 & 3. Mr. B.P. Sharma, Senior Advocate with Mr. Hamender Chandel, Advocate, for respondent No. 4. Mr. Javed Khan, Advocate, for respondent No. 5. V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Additional Sessions Judge, (1st), Shimla, dated 24.6.1993, vide which the respondents were acquitted of the charge framed against them under Section 376 I.P.C. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated the facts of the case are that on 14.9.1990 a report was lodged by Smt. R at 8.30AM at Police Post Sanjauli that on the previous day she had gone during time for collecting of scraps. At about 8.00PM she was present near tunnel of Dhalli and one of the persons Prem Chand known to her and 4 other persons forcibly picked her up in the truck which was taken towards Chini-Bangla and she was raped by all those persons and was brought back to Sanjauli and left near Sanjauli Chowk. She was frightened, therefore, she did not report the matter during night time and came alongwith her mother and lodged the report on the next morning. The case was registered leading to the filing of the challan against the respondents who were tried by the learned trial court leading to their acquittal. Heard. The submissions made by learned Additional Advocate General assisted by learned Law Officer for the appellant were that the statement of the prosecutrix coupled with other evidence was sufficient to prove the guilt of the accused. It was submitted that the learned trial Court on considering the minor infirmities and contradictions in the prosecution case had disbelieved the prosecution story which findings can be termed as perverse which requires reversal and as such, the appeal may be accepted. On the other hand, the learned counsel for the respondents had supported impugned judgment for the reasons given therein. A perusal of the record of the case shows that the case was registered on 14.9.1990, at about 8.00AM, on the basis of the report 3 lodged by the prosecutrix PW-1 Smt. R in which she has stated that when she was crossing the tunnel and coming towards Sanjauli, a Swaraj Mazda truck was parked in which there were two persons and three were standing outside the truck. One of those persons Prem Chand was known to her who caught hold her forcibly and remaining persons lifted her and she raised an alarm but the truck driver took the truck towards Kufri and parked it there and she was raped by placing her on the Dala of the truck. She was raped by all those persons and she also named those persons as well as also gave the number of the truck also. She alleged that she was dropped at Sanjauli Chowk and came back to her house and narrated the story to her mother and then lodged the report. When she appeared in the witness box as PW-1 she came up with the version that 4-5 persons were there but accused Inder Jit Singh was not there. She came up with the plea that those persons offered her to give apples and when she spread her arms, she was forcibly lifted in the truck and was taken under threat and was raped thereafter. She was very specific that Inder Jit Singh did not do anything with her nor he was present there, though in the report lodged on the next morning she has clearly implicated the said accused as one of the persons who had raped her. Now she has come up with the version that she was laid on the front seat of the truck, though in the F.I.R. she has reported that she was raped on the Dala. She also came up with a statement that when she was being forcibly lifted, 2-3 persons tried to save her and when they intervened, there was altercations in between those persons and accused which altercations attracted 10-12 passers-bye who had also quarrel with the 4 accused but the accused took the truck. In her statement she clearly stated that she was not knowing either of the accused at that time and how she came up with the names of those persons or who told the names was not clear from her statement Ext.PA lodged wth the police on the next morning. She came up with the plea that even police constable had also tried to save her when she was abducted by the accused but no such report was ever lodged by the police constable or the persons who tried to save her. She came up with the statement that she saw Prem Chand accused also for the first time as well as other accused, whereas in her statement she has mentioned that she was knowing Prem Chand prior to the occurrence. In her statement she came up with another story that on the night of occurrence she remained in the Police Post, Sanjauli and her mother was called by the police and thereafter, her report was registered. But in her statement made to the police it was mentioned that out of fear she did not lodge the report and told her mother about the said incident and came with her mother and lodged the report at 8.00AM in the morning. She further stated that Munshi of Police Post, Sanjauli kept her inside the room in the same premises, where he used to sleep. She stated that her house is at a distance of 10-15 minutes walk from the Police Post Sanjauli. In case her house was nearby the Police Post, there was no need for her to stay at the Police Post and either she could have gone there with the police party or her mother could have been called to Police Post and asked to take her daughter and the report could have been registered but the fact remains that report was registered on the next day. 5 The Investigating Officer of the case PW-12 Hirdu Ram has stated that he recorded the statement of the prosecution on the next day at 8.30AM, got the accused medically examined and he denied the suggestion that Smt. R was made to stay in the Police Post for the night. He stated that he arrested two of the accused near Police Post, Sanjauli on the next day but had stopped the truck in question on 13.9.1990 in which the offence was allegedly committed and accused Harish and Devki Nandan were found in the truck and it was impounded on 13.9.1990 at 10.30AM. He stated that he cannot say as to why the vehicle was impounded and he did not maintain any daily diary regarding the seizure/impounding of the vehicle and even after seeing the record, he could not state as to why the truck was impounded. In case the truck had been impounded on the day of the occurrence and had been released subsequently on 25.10.1990 as stated by this witness PW-12 Hirdu Ram, how the same truck could have been used by the accused persons on the evening of 13.9.1990 for committing the offence of rape with the prosecutrix which explanation is not forthcoming from the statement of this witness or any other witness. We are unable to give the reasons as to how the truck was shown to have been impounded on 13.9.1990 when the report was lodged on the next morning by the prosecutrix that she was raped in this truck and may be the Investigating Officer wanted to show that the truck in question was not involved since it was already in their custody but he has failed to produce any record as to why the truck was impounded. If it was impounded on 13.9.1990, the investigation in the case can be said to be tainted and not fair. 6 The prosecution had also examined PW-3 Inder Singh who states that he tried to save the prosecutrix from being taken in the truck and they went to Police Post Sanjauli and reported the matter there but there is nothing on record to show that any rapat was lodged or registered by the M.C. present there in the Police Station. In case any such report had been lodged, the police could have deputed somebody to apprehend the truck if it crossed Police Post, Sanjauli but surprisingly no such report was registered though this fact had come to the notice of the Investigating Officer who appeared in the witness box as PW-12 Hirdu Ram, Incharge of the Police Post that he learnt about the lodging of said report. He learnt about the kidnapping of a girl in a truck but the Munshi did not write any such report nor he took any action. It is surprising that he did not himself take any action when this fact was brought to his knowledge as stated by him in his statement as PW-12. This clearly shows that the conduct of the Investigating Officer himself was not fair and he neither took steps according to law for entering of such report, nor acted promptly on the receipt of such information but waited for the prosecutrix for appear before him on the next day and lodge the report, though the prosecutrix herself states that she remained at the Police Post throughout night. It is difficult to hold which of the prosecutrix version can be said to be true what she has stated in the Court or when she lodged the report earlier in regard to the fact that the accused persons were known to her. Her statement in Court in police does not prove as to how she learnt about the identity of the accused persons though she had named all the accused persons in the report, though they were not known 7 to her. No identification parade had taken place in which the prosecutrix may have identified the accused persons. In her statement in Court she came up with the plea that names of these persons were disclosed to her by the police and she even went to stating that the accused were lodged in the Police Post, Sanjauli and she did not know the names of the other accused persons present in the Court. She came up with the statement that she seen the accused for the first time after the occurrence. She further stated that she saw the accused in the Police Post and thereafter today in Court. In case she had seen the accused for the first time in the Police Post, how her version can be believed that it was the accused persons who had committed rape with her. She stated that Harish accused gave her tooth bite when he committed rape with her but according to MLC Ext.PL of prosecutrix, there were no marks of injury on her person which, therefore, does not corroborate the statement of the prosecutrix that she was given tooth bite by accused Harish at that time. It has also come up in evidence that PW-1 Smt. R had stated that accused had cleaned themselves with their respective underwears and she had been bleeding at that time which bleedings was there on her salwar Ext. P-1. In case the accused person had cleaned their private parts with their own underwears spermatozoa must have been present on the underwears taken into possession by the police and sent to Chemical Examiner for analysis but the report of the Chemical Examiner Ext. PX does not show that spermatozoa was reported on any of the underwear sent for examination, though it was present on the salwar and slides taken by the Medical Officer. Thus this 8 also does not give corroboration to the prosecutrix story that she was raped by the accused persons. The identity of the accused persons could not be established and therefore, the findings recorded by the learned trial Court in holding that the prosecution had failed to prove their case cannot be said to be perverse calling for an interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is liable to be dismissed and the same is dismissed accordingly. Bail bonds furnished by the respondents are discharged. ( V.K. Ahuja ), Judge ( Surinder Singh ) March 5, 2008 Judge (BSS) 9