IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 710/2001. Date of decision: 28.4.2009. Baldev Raj. …Appellant.. Versus State of H.P. . ……Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1 yes. For the petitioner: Mr.M.S.Chandel, Advocate with Mr.Rakesh Jaswal, Advocate. For the Respondent: Mr.J.S.Guleria, Assistant Advocate General. Surinder Singh, J(oral). The appellant was convicted under Section 376 of the Indian Penal Code allegedly for committing the rape on the prosecutrix aged about 13-14 years, thus he was sentenced to undergo rigorous imprisonment for a period of nine years and to pay a fine of Rs.5,000/-, if recovered, the fine was ordered to be paid as compensation to the prosecutrix. The appellant has challenged his conviction and sentence in this appeal on the grounds that the learned trial Court did not appreciate the evidence on record, in right perspective, further that it also ignored 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes . 2 the D.N.A. report which demonstrated the complete innocence of the appellant, besides the above facts there are glaring contradictions which make the prosecution case doubtful and the testimony of the prosecutrix is full of contradiction which could not be relied upon. The allegation on which the appellant was put on trial can be summed up thus. The prosecutrix alleged that the appellant committed rape on her on four different occasions w.e.f. March 2000 to October, 2000 as follows: Firstly, during the period somewhere in March, 2000 when the prosecutrix was going to the field to cut the grass, the appellant met her on the way near his cow-shed. She was dragged inside and gagged her mouth. Though, she raised shrieks yet it yielded no results and the appellant committed rape on her. She was threatened that if she disclosed this fact to anyone, he would kill the entire family; On the second occasion, four days after the first incident, when she had gone to the jungle to graze the cattle, the appellant met her there and forced her to have sex with him and again gave threatening of extinction; Thirdly, the appellant barged into her house finding her alone again committed the sexual intercourse with her forcibly; AND 3 Fourthly, when she had gone to the house of the appellant to fetch ‘Lassi’, the appellant was alone. She was dragged inside and again the appellant abused her sexually in his own house. According to the prosecutrix by the repeated sexual intercourse by the appellant, she became pregnant. When the pregnancy became visible she complained to her mother about the repeated rape with her by the appellant. A local Panchayat was also convened wherein the father (DW1) of the accused agreed to maintain the baby if born to the prosecutrix. It was only thereafter an F.I.R. (Ext.PA) was lodged against the appellant. The prosecutrix was got medically examined by police in Civil Hospital, Arki. PW6 Dr.Vandana found the signs of pregnancy but the final opinion was reserved to be given by her after the ultrasound graphic and radiological examination. Thus, she referred the prosecutrix to the District Hospital, Solan for determination of pregnancy and age. She issued her M.L.C. (Ext. PF). However, the doctor opined that the prosecutrix was carrying the pregnancy of about 8 ½ months. PW7 Dr.Amrish Kapoor, Gynecologist, District Hospital, Solan examined the prosecutrix on 24.10.2000. The test of the pregnancy was found positive and in his opinion the prosecutrix was carrying 4 the pregnancy of 34-36 weeks and gave his report Ext.PG on the back of the Ext.PF. Thereafter she was referred to the Radiologist for the determination of the skeletal age which was determined by PW11 Dr.J.P.Kaushik, Radiologist, District Hospital, Mandi between 17 to 19 years (Ext.PH/A). During the investigation of the case, the police took into possession the Pariwar Register (Ext.PC) wherein the date of birth of the prosecutrix was shown 13.11.1996 and the same was reflected in the school leaving certificate (Ext.PB). The police also prepared the site plans (Ext. PM to Ext. PO) of the alleged places of incident. The appellant was arrested and he was medically examined by PW12 Dr.Mukul Bhatnagar. He found him capable of performing the sexual intercourse and to this effect he issued a certificate Ext.PN. After the delivery of the child by the prosecutrix, the police took the blood samples of the child, the prosecutrix and also the appellant for D.N.A. profiling and also of one Ishwar Dass @ Jagga and some other suspects.. After recording the statement of the witnesses and on completion of the investigation, the challan was presented in the court for trial of the accused-appellant under the aforesaid Section. 5 The D.N.A. report qua the appellant with respect to the child was found negative. Finding a prima facie case against the appellant, he was charge sheeted under Section 376 of the Indian Penal Code to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the accused was also examined under Section 313 Cr.P.C. He denied the circumstances which were found attendant upon him. Precisely his case was that of denial and according to him he was falsely implicated in the case on account of litigation with the uncle of the mother of the prosecutrix. When he called upon the appellant to enter upon his defence he examined DW1 Sh. Bhagat Ram his father. According to him when the prosecutrix had conceived, the mother of the prosecutrix tried to implicate the appellant falsely. Further that when she made the allegation of rape against his son, he constituted a village Panchayat wherein Parma Nand, Ganga Ram, Roop Lal and Krishan Dass were present and in their presence the mother of the prosecutrix insisted upon him that the appellant should marry with her daughter, otherwise a criminal case would be foisted against him. During the trial of the case, the learned Public Prosecutor moved an application under Section 6 311 Cr. P.C. to place on record the D.N.A. report of Ishwar Dass @ Jagga aforesaid which was allowed. According to which Ishwar Dass aforesaid had fathered the child. But the learned trial Court did not believe the defence version, however acting upon the testimony of the prosecutrix convicted and sentenced the appellant as aforesaid. During the hearing of this case, the learned counsel for the appellant moved an application under Sections 293 and 294 of the Code of Criminal Procedure for proving/ exhibiting the D.N.A. reports of Ishwar Dass @ Jagga and also of the appellant. The application was allowed. Both D.N.A. reports were admitted to be correct on behalf of the respondent-State. Mr.M.S.Chandel, learned counsel for the appellant has argued with vehemence that if the reports with respect to the appellant and that of Ishwar Dass @ Jagga are taken into consideration, the innocence of the appellant stands proved and the testimony of the prosecutrix stands falsified. Further that there are contradictions in the statement of the prosecutrix and the evidence on record also demonstrates that the statement of the prosecutrix is not believable. Contra, Sh. J.S.Guleria, learned Assistant Advocate General for the State has supported the impugned judgment of conviction and sentence and 7 further submitted that in the instant case the prosecutrix was a minor. She categorically stated that the appellant had committed the rape with her many times which impregnated her thus no error was committed by the learned trial Court to convict the appellant on her testimony I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. It is pertinent to note that the circumstances on record show that the prosecutrix and Ishwar Dass @ Jagga both of them had the love affairs. A positive suggestion was also put to her in her cross- examination that she was carrying the pregnancy on account of sexual intercourse with Ishwar Dass @ Jagga to which she denied. However, it is significant to note that while denying this suggestion she further added that the police had threatened and intimidated her to implicate said Ishwar Dass @ Jagga, as such they recorded her statement accordingly. But she did not complain against the police to the higher authorities about intimidation or threatening given by the police. According to PW11 Dr.J.P.Kaushik and PW12 Dr.Mukul Bhatnagar the Deoxy Rubonucleic Acid (DNA) test has cent per cent accuracy to determine the biological fatherhood of the child. PW14 Dy. S.P. Madhu Sudan had taken the blood samples of the appellant, 8 Ishwar Dass @ Jagga and many other suspects through the medical experts to establish the correctness of the allegations made by the prosecutrix as stated by him. The D.N.A. report of Ishwar Dass @ Jagga was found positive and it stood established that he was the father of the child born from the prosecutrix, whereas she denied having any physical relations with Jagga aforesaid. Thus the very foundation of the case is shaken rather the allegation of rape by the appellant resulting into the pregnancy stands totally falsified. Further there are other contradictions in her statement vis-à-vis the statements of other witnesses who were examined to lend credence to her version. PW4 Chhajju Ram and PW3 Bimla, Pradhan of the Panchayat stated that before the village panchayat the prosecutrix disclosed having been sexually assaulted by the appellant only once which resulted into the pregnancy whereas in her statement she alleged that she was sexually molested many times. Even there is contradiction in her statement with respect to the first incident. According to her, the appellant met her on the way near the cow shed when she was going to fetch grass. He dragged her inside and committed sexual intercourse with her but on her return neither she brought the grass and also did not disclose this fact to her mother or anyone else. Her 9 mother PW2 made a different statement that later on when she carried pregnancy she disclosed about the first incident that when the appellant met near his cow- shed he requested the prosecutrix to help her to pick up the load of cow-dung and it was then she was raped inside the cow-shed. PW4 also stated that the appellant was not present in the Panchayat but his father was present who admitted to abide by the conditions if any imposed by the Panchayat for the maintenance of the child. But according to DW1 Bhagat Ram father of the appellant had denied about the allegation being false. According to him it was only a black mailing tactics of the mother of the prosecutrix to extort money. In view of the above facts emerging from the record, in my considered opinion the defence version stands probablised thereby making the testimony of the prosecutrix a suspect. I am aware of the fact that the corroborative evidence is not imperative component of the judicial credence in every case of rape. Corroboration is a condition for judicial reliance on the testimony of the prosecutrix, is not a requirement of law but a guidance of prudence under the given circumstances. Therefore, if it is found that the evidence of the prosecutrix is worth inspiring confidence, it must be relied upon without seeking 10 corroboration of her statement without material particulars. This proposition of law was reiterated by the apex Court in State of H.P. Vs. Asha Ram, AIR 206 S.C. 381 and Moti Lal Vs. State of Madhya Pradesh (2008) 11 S.C.C. 20 and Supreme Court further held that even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. But however, the basic fact remains that the statement of the prosecutrix should inspire confidence in order to sustain the conviction. But in the case in hand, a dent has been caused by the evidence of the prosecution itself in the light of the most reliable evidence of D.N.A. Test qua the appellant which was found negative and that of Ishwar Dass @ Jagga having been found positive which confirmed the fact that the child to which the prosecutrix had conceived was from the lions of Ishwar Dass @ Jagga and not from the appellant. Thus, the defence version stands probablised that the prosecutrix had love affairs with Jagga and she carried his pregnancy. The very foundation of the case propounded by the prosecutrix stands totally shaken. The other contradictions pointed above can not be said to be minor and ignorable in the background of the case. The two versions are deducible from the evidence on 11 record, the favourable to the accused has to be accepted. Therefore, the prosecution case has become highly doubtful the above material facts were ignored by the learned trial Court. Therefore, in my opinion in the instant case the testimony of the prosecutrix is not worth inspiring confidence, accordingly the conviction and sentence passed by the learned trial Court against the appellant is hereby set aside. Consequently the appellant are acquitted of the offence charged. In the result the appeal is allowed. The appellant is discharged of his bail bonds. Send down the record. (Surinder Singh), Judge. April 28, 2009(R)