HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.172 of 1997 Decided on: June 24,2010 State of H.P. …Appellant. VERSUS Surinder Kumar & Anr. ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Anil Jaswal, Dy.AG. For the respondents: Mr.Sanjeev Kuthiala, with Ms.Renu Parwari, Advocates. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 4th November, 1996, passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, in Sessions Trial No.3-G/96, thereby acquitting both the respondents / accused persons for offence under Sections 342, 376(2) (G) read with Section 34 of the Indian Penal Code. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual Whether the reporters of the local papers maybe allowed to see the judgment? …2… background of the case. The facts, according to the prosecution story, are that on 12.5.1995, at about 1.30 PM, during day time, they, in furtherance of common intention, raped Smt.Tripta Devi (victim / prosecutrix) and confined her in the room of Vishal Dhaba at Chintpurni for about four hours and ravished her twice against her will. The prosecutrix, who had appeared in the Court as PW- 10, had gone to Chintpurni Bazar for bringing medicine. She reached near Vishal Dhaba near Chintpurni, where both the accused met her. The prosecutrix went to Vishal Dhaba for taking medicine with water. The accused that they caught her from the arms and dragged her towards the upper floor of the shop to which the prosecutrix objected to. Both the accused gagged the mouth of the prosecutrix and she was put on the cot lying in the upper floor of the shop. The salwar of the prosecutrix was removed by both the accused and after that the act of rape was committed upon her. Both the accused committed the act of rape 3-4 times within a span of about one hour. The prosecutrix was forced to wear the pant as the accused refused to hand over the salwar to her and she went to her house by wearing pant. Then she narrated the entire occurrence to Asha Devi and also to her mother-in-law, on which, the …3… prosecutrix, accompanied by Asha Devi and her mother-in-law, came to the market, where Desh Raj, Devar of the prosecutrix, also met them. The matter was reported to the police, thereafter, the prosecutrix accompanied by Asha Devi and her mother-in-law went to Vishal Dhaba and found present both the accused persons. The accused produced the salwar of the prosecutrix, which was handed over by Asha Devi to the police. The police took the salwar Ext.P-2 into possession vide seizure memo Ext.PW-10/A. 3. The formal FIR Ext.PW-8/A was recorded. The statement of the prosecutrix is Ext.PW-15/A and site plan is Ext.PW-15/C. The prosecutrix and both the accused were got medically examined by the police. The Investigating Officer took into possession the cot Ext.P-3, quilt Ext.P-4 from the upper floor of Vishal Dhaba vide seizure memo Ext.PW-12/A. The doctor, who attended upon the prosecutrix, had issued MLC Ext.PW-14/B. The clothes were taken into possession by the police along with vaginal swab and slides which were sent to FSL Bharari, the report of which is Ext.PX. The police found a case against both the accused and presented the challan in the Court for their trial. 4. After investigation, the accused were charged for the aforesaid offences and the …4… prosecution. In order to prove its case, has examined as many as 15 witnesses, whereas, the respondents / accused, to their statement under Section 313 Cr.P.C., have denied the charges and prosecution case. PW-1, Dr.(Mrs.) S.Sharma, PW-2 Jagdish Lal, PW-3 Sita Ram, PW-4 Surinder Kumar, PW-5 Narain Dass, PW-6 Head Constable Beant Singh, PW-7 Constable Beant Singh, PW-8 Constable Basudev and PW-9 Suresh Chand are the formal witnesses. PW-10 is the prosecutrix and PW-11 is Asha Devi, to whom the prosecutrix narrated the whole incident. PW-12 Desh Raj is Devar of the prosecutrix and PW- 13 Joginder Singh is the alleged eye-witness. PW- 14 Dr.Munish Kumar has attended upon both the accused and issued MLCs. PW-15 is the Investigating Officer in this case. 5. PW-1, Dr.(Mrs.) S.Sharma, who examined the victim / prosecutrix, has given the opinion that on 12th May, 1995 at about 2 PM, the victim was sexually assaulted and the clothes, which she was wearing during the incident, were packed and handed over to police at Chintpurni and on examination no mark of injury on face, neck, breast, abdomen and thighs were detected. On examination of private parts of the prosecutrix, there was no mark of injury on valve or perineal region. Pubic hairs not matted. They were cut and preserved and sent …5… for chemical analyst through police. Labia majora dark coloured – No injury on that part. Labia minora dark coloured. No injury mark. Vagina patulous two finger loose. Uterus retroverted, multi-parous size mobile firm. Cerpix directed forward fornix clear. Vaginal swab and smear taken and sent for chemical analysis. PW-1 has further stated that she issued MLC, copy of which is Ext.PW-1/A, is in her hand and bears her signatures. Vaginal swab, vaginal smear, slide and pubic hair, after duly sealing, were handed over to police along with letter to FSL Bharari. The prosecutrix was habitual to sexual intercourse. After perusing the report of Chemical Analyst, human semen was found on vaginal smear slide which shows that sexual intercourse has been done with the prosecutrix. 6. In cross examination, PW-1, being a medical officer, has stated that the victim is fully grown up lady having three children and she is habitual of intercourse and PW-1 has also stated in her cross examination that it is very difficult for any person to rape a grown up and an experienced woman single handedly without meeting sufficient possible resistance from her and has further stated that the victim in this case if would have used the resistance there would have been injury on her …6… person and there could have been injury on the private part (penis) of the accused and the accused could have suffered injuries on his person. 7. PW-2, Jagdish Lal, Reader to D.C., Una, PW-3 Sita Ram, Kanungo, PW-4 Surinder Kumar, PW-5 Narain Dass, PW-6 Head Constable Beant Singh, PW-7 Constable Beant Singh, PW-8 Constable Basudev and PW-9 SI/SHO Suresh Chand, Police Station Jwalamukhi, in usual discharge of their work, have played the role to the extent they were assigned their duties by the prosecution. 8. PW-10, Tripta Devi (Prosecutrix / victim), has stated that she had gone to take the medicine from the hospital and both the accused called her to the shop at Chintpurni and accused No.1 told her that her husband was lying in drunken condition and she should go and accordingly PW-10 went to the hotel of accused No.1 and at that time the accused was alone in the hotel and he took her to the roof of the hotel and put her on the cot where quilt was placed on the cot. According to PW-10, accused No.2 firstly ravished her, committed sexual intercourse with her and Salwar of PW-10 was kept by accused No.1 at a secret place and both the accused persons did not return the salwar and forcibly asked her to wear the pant and she came down after wearing the pant. She remained for two …7… nights in the Police Post, Chintpurni and she was ravished by both the accused for 3 – 4 times repeatedly. As per the testimony of PW-10, she was not a consenting party to the accused and she was forcibly assaulted sexually as nobody came to the roof and she was kept on the roof for about one hour and the incident was narrated to her Jethani, namely, Asha in the presence of her Devar Desh Raj. PW-10 has further stated that she, along with her above two family members, and mother-in-law came to the shop of the accused and Desh Raj informed the police and accordingly, the police reached the spot. Ext.P-1 is the pant, which was taken into possession vide memo Ext.PW-10/A and Ext.P-2 is the salwar, Ext.P-3 is the quilt and Ext.P-4 is the cot. 9. PW-10, in her cross examination, has stated that she knew both the accused prior to the incident. However, she did not know their names and accordingly the identity of both the accused was given to the police. PW-10 has told the police that the accused were aged about 50 years and having black complexion and brown eyes. PW-10 has, however, categorically stated that she was dragged against her wishes to the roof by the accused by crossing about 15 stairs and she tried her best to get free from the clutches of the accused and in …8… that process there was great scuffle and during the dragging on the said stairs the prosecutrix received injuries, as the edges of the stairs were sharp, and she was firstly removed to the roof of the hotel by accused No.2 and in the scuffle with the accused before the act of rape was committed upon her. In that process, the prosecutrix gave nail scratches on the face as well as on the body of the accused. The prosecutrix also received injuries on her face, breast and other parts of her body. She also gave leg blows to the accused. According to PW-10, her vaginal parts as well as the penis of the accused were oozing with blood and there were number of injuries which had been received during the scuffle and the same had been shown to the doctor, who attended her. PW-10 has very categorically stated that the police also kept her for two nights in the police post as they were interrogating her throughout the night. Police also interrogated her about the involvement of some other persons in the crime including some police officials. 10. PW-11, Asha Devi, has stated that the prosecutrix is her Jethani and that on 12.5.1995 when PW-10 had gone to purchase medicine from Chintpurni Bazar at about 12 noon, she came back at about 6 PM wearing pant as when PW-10 had gone to …9… Bazar she was wearing salwar and shirt and on inquiry she told that both the accused ravished her and the salwar of the prosecutrix was with accused No.1 from whom she colleted the same. Since at that time the husband of PW-11 had gone to Bazar, therefore, PW-11, along with her mother-in-law, went firstly to accused No.1 and collected the salwar from accused No.1 which he got from the upper side of the hotel. According to PW-11, accused No.1 was the servant and after coming from Bazar her husband reported the matter in the Police Station and PW-11, in her cross examination, has further stated that she neither knew the names of the accused nor their occupation prior to the occurrence. However, PW-11 had described the identity of both the accused. PW-11, in her cross examination, has further stated that accused No.1 handed over the salwar of PW-10 and handed over the pant Ext.P-1 to the police. According to PW-11, the prosecutrix (PW-10) had shown the injuries on her person to her, including the face, breast and neck etc. and PW-11 accompanied PW-10 to the hospital where the injuries, so caused to the prosecutrix, were shown to the doctor. 11. PW-12, Desh Raj, has stated that PW-10 is his Bharjai and on 12.5.1995 at about 5 / 6 PM, when he came from the market, he had come to know …10… that PW-10 has been raped. On this, his wife, mother and his Bharjai (PW-10) went to the police station and reported the matter. PW-10, PW-11 and the mother of PW-12 stayed in the hotel in which accused No.1 was working. PW-10 was wearing the pant Ext.P-1, which was taken into possession by the police vide memo Ext.PW-10/A. Salwar Ext.P-2 was produced by accused No.1 and the same was taken into possession vide memo Ext.PW-12/B. PW-12, in his cross examination, has stated that he did not know the names of the accused. He has further stated in his cross examination that he neither new the names of the accused nor PW-10 and PW-11 had disclosed the identity of the accused that they are young persons. 12. From the testimonies of the prosecutrix / victim (PW-10) and PW-12, apparent contradictions have been noticed. PW-10 has stated that the accused persons were known to the victim, however, the names were not known to her and the accused were 50 years of age with black complexion and brown eyes. However, PW-12 in reference to testimony of PW-10 has stated that the accused were young, as such, vital contradiction is being noticed in the prosecution case which goes to the root of the case. …11… 13. PW-13, Joginder Singh, was said to be running a hotel in Chintpurni Bazar and Vishal Dhaba is adjacent to his hotel. Ashwani Kumar is the owner of Vishal Dhaba and accused No.1 was working as servant with Ashwani Kumar and PW-13 has stated that he was not aware that the said occurrence had taken place near the hotel. However, PW-13 has not supported the prosecution case. 14. PW-14, Dr.Munish Kumar, has examined the prosecutrix / victim and has stated that Ext.P-5, Ext.P-6 and Ext.P-7, clothes of the victim, which were produced by the police, were sealed and sent for chemical examination. PW-14 has also stated that he has examined Surinder Kumar, the accused, aged about 24 years, who was found to be capable of performing sexual intercourse. PW-14 has also examined accused Pardeep Kumar, son of Amrit Ram, aged 19 years, who was found to be capable of performing sexual intercourse. However, in cross examination, PW-14 has stated that presence of semen on the person of the accused could be for variety of reasons, whereas, in the present case there was no sign where it could be said that the accused had committed sexual intercourse within 24 hours. …12… 15. PW-15, Shamsher Singh, ASI, Police Post, Chintpurni, has stated that he recorded the statement of the victim / prosecutrix and sent report, according to which, FIR Ext.PW-9/B was registered. However, from the statement of PW-15, except that he discharged his usual duty and played his role in support of the prosecution case, nothing material could be derived from him. The testimony of victim / prosecutrix (PW-10), is exaggerated. She is a grown up and experienced lady. No injury on her person as well as on the person of the accused was found in consonance to the narration of the incident of sexual assault, which is not supported by the medical examination. The testimony of PW-10, victim / prosecutrix, cannot be said to be reliable as she has given different versions about the accused regarding their feature as well as their age. Other prosecution witnesses have also not successfully proved the prosecution case. Apparent contradictions have been noticed which goes to the root of the case. Improbabilities’ appearing, as per the testimony of victim / prosecutrix (PW-10), also make the prosecution case fatal. 16. In our considered view, the prosecution has failed to prove its case beyond reasonable doubt. We find no scope for interference in the impugned …13… judgment and the Criminal Appeal, being devoid of any merit, is accordingly dismissed. 17. Bail bonds, furnished by the respondents, are hereby discharged. ( R.B.Misra ), J. June 24, 2010. ( V.K.Sharma ), J. (soni)