IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 429 of 1996 Date of Decision : March 25, 2010 State of Himachal Pradesh Appellant Versus Ranjit Kumar and others Respondents Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ram Murti Bisht, Deputy Advocate General for the appellant. For the respondents : Mr. S. D. Vasudeva, Advocate, for the respondents. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 1.1.1996 delivered by the learned Additional Sessions Judge-I, Kangra at Dharmshala in Sessions Trial No. 3 of 1995 whereby he acquitted the accused of having committed offences punishable under Sections 147, 148, 149, 324, 342, 376, 506 and 109 of the Indian Penal Code. Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated the facts of the case are that Sh. Yashpal (PW- 7) filed a complaint with the police on 15.6.1994. According to this complaint his sister (prosecutrix) reached home late at about 3.15 p.m. He asked her why she was late. She complained that she was locked in a room by the accused Manohar Lal who is son of the accused Ranjit Kumar and Koshalya Devi. According to him the prosecutrix told him that she had been taken by her classmate to the shop of Manohar Lal before the school started functioning. This version was narrated to him in the presence of his mother. Thereafter, he went to Chari where the shop of the accused was situated. He was accompanied by Vijay Kumar. They went to the shop of Manohar Lal where the parents of Manohar Lal were also present. According to him before he could even start talking, Manohar Lal gave him a blow of an iron rod and accused Ranjit Kumar attacked him with a ‘Toka’ which hit him on the left side of the thigh. Accused Sher Singh who was also present there gave a knife blow to Vijay Kumar. He and Vijay Kumar were attacked by three – four other unidentified persons. The incident was witnessed by Prakash Chand, Bir Singh and Ramesh Chand. Thereafter he and Vijay Kumar managed to escape from the shop of Manohar Lal. Then they went to the shop of Uttam Chand. His parents also came to the shop and then they went to the hospital at Shahpur. Intimation was given to the police who came there and recorded his statement Ext. PW7/A. Thereafter F.I.R. Ext. PW 13/A was recorded and the police started investigating the matter. 3 It appears that the statement of the prosecutrix was recorded under Section 161 Cr. P.C. on the same day in which she stated that in fact Manohar Lal had raped her four times during the six hours in a room in connivance with Sunita and Raman Kumar, accused. Thereafter the prosecutrix was also got medically examined. Investigation was got done and after the completion of investigation the accused were charged with having committed the offences mentioned hereinabove. The accused have been acquitted. Hence the present appeal. Sh. Yashpal (PW-7) while appearing in the Court repeated what he had stated in his complaint. He admitted in cross examination that even when he made an inquiry from the prosecutrix she did not tell him that she had been raped by any person. There is no mention of the prosecutrix being raped in the original complaint filed with the police. In fact in the original complaint it was mentioned that three – four other boys had also attacked the complainant Yashpal as well as Vijay Kumar with knives for about 15 – 20 minutes. According to him he could not name these three – four persons because he could not recognize them. He could not give the description or the names of the aforesaid three – four persons. Admittedly no test identification parade was got done. It is also not disputed that the distance between the village of the complainant and Chari is only two and a half kilometers. Vijay Kumar(PW-8) is stated to have accidentally met Yashpal at 3.15 p.m. and according to him Yashpal wanted to report 4 the matter to Ranjit Kumar who was the Pradhan and father of Manohar Lal, accused. Even this witness stated that he and Yashpal were attacked with knives for 15 - 20 minutes, by three – four unidentified boys. Who were these three – four boys? This question remains unanswered. The version of the complainant and Vijay Kumar does not inspire confidence. According to these witnesses, as soon as they landed in the shop of Manohar Lal he gave a ‘saria’ blow. According to Yashpal the accused Manohar Lal gave a ‘saria’ blow on his head whereas Vijay Kumar states that it was he who was given blow with a ‘saria’ on his head. How could one blow cause injury on two persons? There is no reason why without any talk having taken place the accused persons would start beating the complainant and Vijay Kumar. Assuming that the prosecution story is correct, it was the complainant who had a right to beat up the accused since his sister, as per his version had been illegally detained and confined by the accused Manohar Lal. His version is that even before he could speak a word the other side started beating him. There is no allegation of any verbal altercation having taken place. This totally negates the prosecution version. An even more damaging aspect of the matter is that according to PW-7 when the prosecutrix first narrated the story to him in the presence of his mother she did not state a word about her being sexually abused by the accused Manohar Lal. Her only complaint was that he had locked her in a room. When did the 5 prosecutrix first disclose the fact that she had been raped and to whom remains a mystery. Did this version came for the first time after the fight took place as it now appears from the record? If that be so then we have to scrutinize the statement of the prosecutrix with great care and caution. According to the prosecutrix (PW-3) she had gone to attend the school on the fateful day of 15.6.1994. She stated that accused Sunita Devi was also studying in the same school. Sunita was a friend of her’s and told her (prosecutrix) that she had started menstruating and therefore the prosecutrix should accompany her to her house. Admittedly, without taking any permission from the authorities in school the prosecutrix and Sunita left the school and went to the shop of accused Manohar Lal which is situated just across the road to the school. This version also does not appear to be correct. If Sunita was menstruating and did not want to attend the school she would have gone home and not to the shop of Manohar Lal. According to the prosecutrix, accused Manohar Lal took her inside a room and accused Raman Kumar locked the room from outside and then Manohar Lal raped her four times in a period of about 6 hours. The prosecutrix stated that between 8.00 a.m. and 2.00 p.m. period when she was locked in the room and raped by accused Manohar Lal she struggled and had scuffles with the accused. According to her she had scratched the body of the 6 accused Manohar Lal and had given scratches on his face and hands. She stated that she had received injuries on her breast, face, etc. According to her she hit the penis of the accused with her legs and also scratched it. She further averred that this struggle went on for almost the entire period. The version of the prosecutrix is totally unbelievable. She claimed to be locked up in a room on the main road just opposite to the school. As per the site plan Ext. PW16/C there are a number of houses and shops adjacent to the shop of the accused Manohar Lal. If the prosecutrix had struggled for about six hours somebody would have heard her shouts. In fact the medical evidence also does not support the version of the prosecutrix that she was sexually assaulted. The prosecutrix was first medically examined by Dr. (Mrs.) Vipin Sharma (PW-1) at PHC Shahpur on 16.6.1994. The observations of the Doctor are as follows: “Local Examination: No external marks of injuries over breast, thighs, lips, perineum back seen. Whitish stains found on the pubis, swabs taken from the same area and sent for chemical examination. Hymen not torn. Swab stick could be introduced with difficulty and same sent for chemical examination. Vulva and vagina shows no mark of injury. Finger could not be introduced, into the vagina.” The aforesaid findings clearly shows that there were no injury marks or any marks of sexual assault on the prosecutrix. No injury 7 was found on the labia majora and labia minora. Hymen was found intact. Vaginal smear slide was sent for chemical examination and as per the report Ext. PX no semen and blood was found on such slide or even on the underwear of the prosecutrix. The opinion of this Doctor was that she could not opine that rape had been committed. Another important aspect is that according to the doctor when the prosecutrix was brought before her by that time the police had already taken into possession the clothes of the victim and the same had been sealed by them. She admits that without opening the parcel and examining the clothes, at the instance of the police she resealed the clothes which had already been sealed by the police. She clearly states that the possibility of her being made a tool to protect the tampering of the clothes done by the police, cannot be ruled out. It appears that a Medical Board was constituted to reexamine the prosecutrix and this Board consisted of Dr. Prem Lata Shukla (PW-2) and Dr. Gayatri Mahajan. They examined the prosecutrix on 17.6.1994. They also found no injury marks on the person of the prosecutrix. Relevant portion of their finding is as follows: “Labia majora and minora well developed. No injury found on them. Hymen intact. Tip of one finger can be introduced in vagina. No laceration bruise or bleeding from hymen on vagina present. Vaginal smear was taken.” 8 They opined that the findings were not consistent with the history of rape. However they could not say that rape had not been committed. PW-2 admitted that they were told by the police that the prosecutrix had been raped and that is why they mentioned this fact in the case history. The medical evidence totally belies the prosecution story. First of all there is no medical evidence to show that the prosecutrix was subjected to sexual intercourse. Her hymen is intact. Vagina admits only a tip of one finger and that too with difficulty. No laceration, bruises or bleeding were present in the vaginal region. This is totally inconsistent with recent sexual intercourse. Assuming, that some sexual intercourse had taken place, the medical evidence does not show that the prosecutrix struggled at all. Admittedly she is more than 16 years of age. Therefore, even if there was any sexual intercourse, that was with her consent. Accused Manohar Lal was examined by Dr. N. S. Bedi (PW-5) on 20.6.1994. He found no marks of injury on the body and on or around the sexual parts. This is also totally inconsistent with the version of the prosecutrix. Dr. Sushil Sharma (PW-4) examined the complainant Yashpal and found two injuries on his person: (i) Incised wound measuring 2.5 X 1.5 X 1 cm over the posterior aspect of left thigh and (ii) fresh bleeding around the same injury. Nature of the injury was simple. He also examined Vijay Kumar (PW-8) the other injured person and found only one injury which was swelling in the occipital region. X- 9 ray of this injury was carried out and the injury was again found to be simple. It is thus obvious that the complainant (PW-7) and Vijay Kumar (PW-8) had only suffered two minor injuries. This is inconsistent with their statements in the Court that they were beaten by iron rod by accused Manohar Lal, beaten by accused Sher Singh and attacked with knives by three – four other unidentified persons. It is more than obvious that a totally false story has been cooked up by the prosecution. In view of the above discussions we find no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 25, 2010 (PK)