IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 26 of 1999 Decided on: 10.9.2010 State of H.P. ..…Appellant Versus Amar Singh. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. with Mr. Anil Jaswal, Dy. A.G. For the respondent : Mr. Vinay Thakur, Advocate. R.B. Misra,J. (Oral) The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 1.9.1998, passed by learned Sessions Judge, Shimla, H.P. in Sessions Trial No. 26-S/7 of 1997, acquitting the respondent-accused for the offence, under Section 376 of the Indian Penal Code. 2. The prosecution case is that victim/prosecutrix (name not given), aged about 19 years, while returning from type-writing Institute on 5.6.1996 on way to her village, when reached near Electricity Tower, at a place called Van Vihar Park, 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 she noticed a young man, not familiar to her earlier, was following her and the man quickened his pace and overtook the girl and caught her by her arms and dragged the victim/prosecutrix to the lower side of the road into the bushes. During such dragging, victim/prosecutrix slipped on the pine needles and had received scratches on her back and near chest and after being dragged for about 100 yards from the road edge, the respondent-accused after removing her Salwar committed sexual assault and he remained there for 2-3 minutes and then the victim/prosecutrix adjusted her clothes and started moving in the direction of the road. As soon as she reached at the road, she saw her cousin Narinder (son of sister of her father) coming from Shimla side. She told her cousin about the incident. Her cousin chased that man in order to apprehend him but the man disappeared in the forest, however, the girl then went to Police Post, Summer Hill and lodged the report in the form of a statement, under Section 154 Cr.P.C.. Accordingly, FIR No. 103 of 1996 was lodged and girl was medically examined on the same day around 6.45 P.M. Next day, the police visited the spot and found the Clip of the prosecutrix lying there which had fallen from the hair of the prosecutrix at the time when crime was committed against her. According to the description given by the victim/prosecutrix, the respondent-accused aged about 24-25 years was of dark complexioned, wearing grey coloured pant, Mehandi coloured T-shirt and V-shaved chappal and had a mark of cut injury near one of his elbows. After investigation, respondent-accused was charged for the aforesaid offence and was tried and the case was committed to Sessions Court. 3 3. In order to prove its case, the prosecution examined as many as six prosecution witnesses, whereas the respondent- accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. Victim/prosecutrix was medically examined by PW-6 Dr. S.Kumar, Medical Officer, Ripon Hospital, Shimla and on examination he noted following injuries and given opinion as below:- “1. Multiple abrasion on the left side of fact and neck and their colour was red. 2. Lineer abrasions on the medial side of both breasts coloured red. 3. Multiple abrasions below right breast shown in diagram drawn in the medico legal certificate. Its colour was also red. 4. Multiple abrasion on the left side of back. The side is shown in the diagram. Its colour was also red. 5. A lineer abrasion 4” just above right hip. It was also red in colour. On local examination it was found that the patient had been having menses for the last five days. This was stated by the examinee herself. Pubic hair taken for being sent to the Chemical Examiner. The examinee had already changed her Salwar. She brought the Salwar which she was wearing at the time of the alleged incident. It had blood stains. It was sealed for being sent to Chemical Examiner. 4 No matting of hair was seen. There was no mark of injury around the private parts. No blood stains or stains of any other matter was seen on or around private part. Labia Majora and Labia Minora were well developed. Hymen was intact. There was redness and tenderness in the posterior fourchette. Posterior fourchette was intact. Hymen admit tip of the little finger with difficulty. Vaginal swab was taken for being sent to Chemical Examiner. The probable duration of the aforesaid abrasion was within 12 hours. The duration could have been 0 to 12 hours. In my opinion the patient had not been subjected to sexual intercourse, however, the possibility of an attempt having been made to rape her could not be ruled out in view of the aforesaid abrasions.” 5. PW-1 Shyam Lal Inspector recorded the statement of victim/prosecutrix under section 154 Cr.P.C. PW-2 Dr. Ravinder Mokta, Medical Officer who examined respondent- accused found respondent-accused capable of forming sexual intercourse. 6. PW-3 victim/prosecutrix in her endeavour to support the prosecution case has narrated that on 5.6.1996 when she was returning from Summer Hill Shimla to her village at 2.30 P.M. after learning type writing and had reached near electricity tower, in forest, she noticed one person coming from behind, to whom she was not known, however, that man walked with quick and caught her and hold her arm from behind and 5 dragged her towards valley side and took her to a considerable distance from the path. During dragging she slipped on pine needles and fell on the ground. Respondent-accused shut her mouth with his hands and removed her Salwar and committed sexual assault and then he went away from the spot. Thereafter, she walked back to the path and reached to the main path where she came across Narinder, who was narrated the entire incident. PW-3 has stated that she had noticed scratch mark on the left upper arm of the respondent-accused when she was being sexually assaulted and she suffered abrasions on her back and chest. She further stated that thereafter she went to the Summer Hill Police Post in the company of her cousin Narinder and lodged report and thereafter, she was taken to the hospital for medical examination. After medical examination next day police visited the spot and her hair clip was taken into possession vide memo Ext.PD. In cross-examination, PW-3 has stated that she was dragged to the distance of about 100 yards by the respondent-accused and respondent-accused remained with her on the spot only for 2-3 minutes, and after committing the crime respondent-accused went in the direction of the side where he had caught hold of her, whereas, she started back towards the path about five minutes after the disappearance of the respondent-accused and he was not visible when she reached the main path. PW-3 came across Narinder after 2-3 minutes after her reaching the path. However, she identified the respondent-accused on 12.10.1996 when he was going towards village Sangti from Summer Hill side and when PW-3 saw respondent-accused, her uncle accosted the 6 respondent-accused for misbehaving with the girl and her uncle told the respondent-accused to accompany him to the police station and respondent-accused willingly went with her Uncle to the Police Station. After respondent-accused was identified by PW-3 her statement was again recorded on 12.10.1996 by the police. From the testimony of PW-3 victim-prosecutrix it could be inferred that while she was being dragged by the respondent- accused she did not raise any hue and cry.. During alleged sexual assault, she also did not raise any hue and cry, when the respondent-accused was escaping from the spot also she did not make any hue and cry. On the way she did not make any hue and cry and she was not weeping while apprising the incident to her cousin Narinder. PW-3 during in her examination-in-chief or in cross-examination also had not stated that during the alleged sexual assault she had endeavoured to put any resistance to make the respondent-accused un- successful in his attempt. 7. PW-4 Narinder Sharma, the cousin of the victim- prosecutrix PW-3 in his endeavour to support the prosecution case has stated that on 5.6.1996, around 3.00 P.M. while passing though forest situated below Van Bihar near electricity tower he saw the victim-prosecutrix climbing the main path from the lower side. She was crying and PW-4 observed a boy running away from near her. On his asking, victim-prosecutrix told that the boy, who had run away had dis-honoured her. PW-4 chased the boy, however, could not keep pace with him. Thereafter, victim-prosecutrix came to Summer Hill Police Post to lodge the report. As per statement of PW-4, when he could 7 not catch hold of the respondent-accused he also came to Police Post, Summer Hill, however, by that time, victim/prosecutrix had already gone after recording her report to the police. Thereafter, PW-4 accompanied the victim/prosecutrix to the hospital and on 12.10.1996 around 9.15 A.M. when PW-4 and his maternal Uncle Rajinder Kumar were coming to Shimla from their village, respondent-accused was seen coming from the opposite direction from Summer Hill side and the victim/prosecutrix told that he was the man who had dis- honoured her on 5.6.1996. They caught hold of the respondent- accused and took him to the Police Post Summer Hill. In cross- examination, PW-4 has stated that respondent-accused did not run away on the lower side of the place of occurrence. He ascended towards the main path but did not touch the main path and started running parallel to the main path from the site of occurrence. In his cross-examination PW-4 has further stated that in his endeavoured to apprehend the respondent-accused on the fateful day he kept chasing the respondent-accused for about one hour in the forest and went to the Summer Hill after giving a chase to the respondent-accused believing that victim/prosecutrix might have gone to the Police Post to lodge the report and when he reached the Police Post Summer Hill at 6 or 6.15 P.M. he was told that the victim/prosecutrix accompanied by police people had just left for village Sangti. PW-4 has further stated that on 12.10.1996 after respondent- accused was identified by victim-prosecutrix, he tried to run away but PW-4 and uncle of victim-prosecutrix chased him for 8 10-20 feet and over-powered him and then respondent-accused was forcibly taken to the Police Post, Summer Hill. 8. On analyzing the testimony of PW-4, it appears that he had seen the respondent-accused running from the spot and in his endeavour to apprehend the respondent-accused, him he chased for one hour and after becomes unsuccessful he went to the Police Post, Summer Hill, whereas, in view of testimony of PW-3 victim-prosecutrix, PW-4 Narinder had accompanied her to the Police Post. There is a vital contradiction in the testimony of PW-3 and PW-4 that when on 12.10.1996 the respondent- accused was identified by PW-3 then the respondent-accused willingly accompanied the Uncle of PW-3 to the Police Post Summer Hill and at that time only Uncle of PW-3 was there. Whereas, in view of the testimony of PW-4 on 12.10.1996 after identification of respondent-accused by the victim/prosecutrix (PW-3), the respondent-accused tried to run away, however, was over powered after 10-20 feet and was forcibly taken by PW-4 and Uncle of PW-3. Such vital contradiction goes to the root of the case. making doubtful the presence of Narinder on the fateful day near spot and also on 12.10.1996 at 9.15 a.m. near Summer Hill. 9. On analysis of the prosecution witnesses and materials on record, we notice that in view of testimony of PW-6 Dr. S. Kumar there are abrasions/scratches on the body and the possibility of sexual assault could not be ruled out, whereas, specific allegation of PW-3 is that she was sexually assaulted. As such, the testimony of PW-3 is not reliable. More so, when she had not raised any hue and cry or put any resistance or had 9 not tried to give any teeth bite or make scratch mark on the body of the respondent-accused in her endeavour, if any, to oppose sexual assault with her on the fateful day. Surprisingly, Uncle of victim/prosecutrix, who was said to be accompanying the victim/prosecutrix PW-3 on 12.10.1996 at 4.15 P.M. in Summer Hill area where PW-3 has identified the respondent- accused, but the most vital prosecution witness Uncle of victim/prosecutrix was not examined by the prosecution. 10. Analyzing of the prosecution witnesses neither the testimony of victim/prosecutrix PW-3 nor the testimony of PW-4 Narinder is inspiring confidence because vital contradictions are being noticed about the allegations of sexual assault and the manner of sexual assault which allegedly have taken place. 11. On analysis of entire facts and circumstances, prosecution witnesses and medical report, we could infer that the prosecution has failed to prove its case beyond reasonable doubt and could not be successful in bringing home the guilt to the respondent-accused. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 12. Bail bonds, furnished by the respondent-accused, are hereby discharged. (R.B. Misra), Judge. September 10, 2010 (V.K. Sharma), Judge. (vs)