HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 592 of 2003 Decided on: 28.10.2010 State of H.P. ……… Appellant. Versus Ashwani Kumar and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.J.S.Guleria, Assistant Advocate General. For the respondents: Mr.Rakesh Jaswal, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment passed by the learned Chief Judicial Magistrate, Bilaspur, dated 16.7.2003, vide which the respondents were acquitted of the charge framed against them under Sections 147, 149, 323, 325 and 354 IPC. 2. Briefly stated, the facts of the case are that on 15.9.1998, a report was lodged with the police by Smt.Savitri Devi that on 14.9.1998 at about 6.00 p.m., she was present in her house and her mother Smt.Kaushalya Devi asked her to go to the fields and cut the grass. She went in the fields for cutting the grass and respondent No.1 Ashwani Kumar came there, caught hold of her from her both arms and respondent Subhash Chand also came there and caught hold of her from her hair. They threw her on the ground and ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - respondent Kishori Lal sat on her chest and respondent Ashwani Kumar closed her mouth with Duppatta. She raised an alarm and the remaining accused came their and all of them gave beatings to her with danda. On hearing her cries, her mother also reached there, who was given beatings by Surinder Kumar. She further alleged that she became unconscious. After sometime, she regained consciousness and went to the house of Pradhan, who advised them to lodge the report with the police. Thereafter, on the next day, this report was lodged by the complainant and on the basis of such report, a case was registered and after investigation, the challan was filed before the learned trial Court, who tried the respondents for the offences detailed above, leading to their acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the prosecution had examined 14 witnesses in all to substantiate their case. The statements of the complainant Savitri Devi herself as PW-1, PW-2 Kaushalya Devi, mother of the complainant Savitri Devi, and PW-4 Balbir Singh, brother of the complainant, are most material, apart from the medical evidence. The accused persons have taken the defence that they and other villagers have a common passage through the government land, which has been encroached by the complainant party, who had fenced the same and, therefore, a dispute remains in between the parties due to the said land. - 3 - 5. The complainant Savitri Devi as PW-1 clearly admitted that there is a dispute in between the parties in regard to the said land, which has been fenced by them but PW-2 Savitri Devi, her mother, has denied that there is any dispute in between the parties. This fact was also admitted by PW-12 Gian Chand in his statement that the adjoining to the land of the complainant party, there is government land on which the villagers have got a right of passage and bartan. The complainant party wants to close the said path on the government land and this appears to be the cause of dispute in between the parties. The fact that PW-2 Kaushalya Devi denied this dispute in between them leads to the inference that she is not a truthful witness and her statement has to be taken with caution. 6. Coming to the statement of PW-1 Savitri Devi, complainant, in her statement she has stated that firstly Subhash Kumar came there, caught hold of her from her arms and Sanjay took her darati while other accused, namely, Kishori Lal, Ashwani Kumar and Surender did bura kaam with her, meaning thereby that she was raped by them. She further stated that they also tore her cloths and some of them had caught hold of her from legs. She was given blows with bamboo sticks by Ashwani Kumar and when she raised an alarm, her mother Kaushalya Devi came there. The complainant PW-1 Savitri Devi was not confronted with the report lodged by her with the police or with her statement Ext.PA, which should have been done. This fact cannot be ignored that in her statement Ext.PA made to the police, on the basis of which FIR Ext.PW-13/A was registered, there was no mention that - 4 - bura kaam was done or she was raped by the accused persons or her cloths were torn. Therefore, she had made major improvements, which were required to be put up to her in her cross examination, but the fact that these were not put up to her by the defence counsel leads to the inference that the improvements made by her can be ignored by this Court. There were no allegations of any rape or tearing of cloths and in that regard the complainant had made improvements in her statement. In cross examination, she came up with the plea that she understands the term “Chhedkhani”, meaning of which is indecent assault and she calls it as a rape. She admitted that in her statement Ext.PW-1/A to the Judicial Magistrate, she had stated in this regard. She further stated in her statement that four accused persons committed rape with her and three accused did not do any rape with her and both the statements are stated to be correct by her. She also admitted that she went to the Pradhan. She had stated to him only in regard to the beating but not in regard to the indecent assault or the rape. She also admitted that she never told the Pradhan that her cloths were torn. Therefore, her statement is such that she cannot be relied upon since she had made improvements on major facts and tried to implicate the accused persons in a serious offence. She first claimed that when her mother came, all the accused person ran away and again stated that her mother was also given beatings with dandas. She stated that marks of injury were there on her body, which remained for one year. She admitted that she had shown the injuries to the Medical Officer and her mother also suffered 20/25 injuries on her person. - 5 - 7. PW-2 Kaushalya Devi is the mother of the complainant, who has stated that on hearing the cries of her daughter, she went to the spot and found that all the accused persons had caught hold of her daughter from arms and when she enquired, she was also given beatings by Ashwani Kumar and she became unconscious. There is nothing as to the number of injuries inflicted upon her person or the fact that other accused persons also gave her beatings at that time. 8. PW-4 Balbir Singh is the brother of the complainant, who had reached the spot afterwards on hearing the cries and he found that his sister was unconscious and his mother had also suffered injuries and they ran away on seeing him. He has nowhere stated that the injuries were inflicted in his presence or he had witnessed the occurrence. He further stated that he carried his sister to the house of Pradhan where she regained consciousness and then she was brought to Bilaspur. He further stated that his sister remained in hospital at Shimla for 1-1/2 months. 9. PW-3 Deva Nand and PW-12 Gian Chand were also examined that they had witnessed the occurrence but they turned hostile and had not supported the statement of the complainant, who had also not named them as the witnesses to the occurrence and that they had come to the spot at the relevant time. 10. PW-10 Dr.S.Mehta has stated that he had examined Savitri Devi on 15.9.1998 and found the following injuries on her person and observed as under: “On examination, Savita was fully conscious, well oriented and fully developed and on my examination I found following injuries: - 6 - 1. Bruise reddish in colour, 1 inch x 3 inch size with gap of normal size of skin of size 1/2 inch in width, oblickly (sic) placed on left side of abdomen above iliac, craft left hip. 2. Complaint of left pain buttock bruise 1- 1/2” x 1/2” in size, reddish in colour. Advised X-ray pelvis, A.P. and X-ray left hip joint lateral view. 3. Bruise reddish in colour, 1” x 4” in size with a gap of normal skin of 1/2" in width obliquely placed on mid of left arm on lateral expect (sic). 4. Bruise 2” x 1” in size on left shoulder blade red in colour. Injury No.1, 3 and 4 were simple. MLC X-ray No.294 dt.16.9.1998 and MLC No.296 dt.18.9.1998 reported by Dr.Sankhyan, left hip joint and pelvis normal. However, he advised X-ray for lumber spine and lateral A.P. and lateral, X-ray No.296 shows L.S. shows carvature deformity with quary fracture, L.4 & L.5, and advised C.T. scan of the above. After C.T. scan, there was no fracture as in part scanned. There was spinal fida (which is deformity by birth). Therefore, injury No. two is simple.” He also stated that the patient was also examined for sexual harassment but after having report from FSL, Junga, there was no possibility of sexual intercourse. He issued MLC Ext.PW- 10/A. 11. PW-10 Dr.S. Mehta also stated that on the same day, he examined Kaushalya Devi and found the following injuries on her person: “1. Bruise 1” x 1” in size on left side of forehead. Red in colour. 2. Bruise on interior of right shoulder 1” x 1” in size. Red in colour. Both the injuries were simple cause within 24 hours caused by blunt weapon. I issued MLC Ext.PW-10/B which is in my hand and bears my signatures.” PW-10 Dr.S.Mehta stated that injury No.2 can be caused due to hard work. Injury No.4 can be caused by way of fall on hard surface. He did not notice any other injury on the person of Savitri Devi. - 7 - 12. It is clear from the above discussion that the statement of the complainant was not such since she had made major improvements in her testimony and her statement, as such, cannot be relied upon. The statement of her mother PW-2 Smt.Kaushlya Devi was also not such that she can be termed as truthful witness. Both the witnesses have stated number of injuries having been inflicted upon them and even the complainant had gone to the extent that the injuries were visible for one year, but the number of injuries on the person of the complainant, as observed by the Medical officer, are four bruises and complaints of pain only while Kaushalya Devi, her mother, had two bruises, though the injuries were stated to have been inflicted 20/25 in number and the marks of injuries were clearly visible for one year, as stated by the complainant. The medical evidence, therefore, does not corroborate the ocular version given by both the witnesses and the statement of the complainant herself was not such which could be relied upon without any due corroboration. In view of the dispute in between the parties, the possibility of false implication of the accused persons cannot be ruled out and the net result of the discussion is that the final conclusion drawn by the learned trial Court cannot be said to be perverse calling for an interference by this Court. 13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. The bail bonds furnished by the respondents shall stand discharged. Oct.28, 2010. (V.K. Ahuja), (TILAK) Judge