1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 139 of 2000 Reserved on :19th November, 2010 Date of Decision: 7th January, 2011 State of Himachal Pradesh Appellant Versus Neeraj Verma and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For respondent No.1: Mr.Umesh Kanwar, vice counsel Mr. Shrawan Dogra, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on 30.12.1998, accused were put to trial. In terms of judgment dated 13.9.1999 passed by learned Sessions Judge, Solan, in Sessions trial No. 7-S/7 of 99, titled as State of H.P. vs. Neeraj Verma & Others, accused stand acquitted of the charged offences. 2. It is the case of the prosecution that in the night intervening 30th and 31st December, 1998, prosecutrix (PW-3) and her husband Shri Pujari (PW-4) were sleeping in the Hawaghar (rain- shelter) situated just above the railway station, Solan. At about 10.30 p.m. accused Neeraj Verma alias Nitu came with accused Riaz Whether the reporters of Local Papers are allowed to see the Judgment? 2 and woke up the prosecutrix and her husband. They pushed PW-4 and asked him about their whereabouts. Nitu represented himself to be police personnel. Thereafter Nitu took out knife and placed it on the body of Pujari. He then caught the prosecutrix by her hand and after dragging her for about 50 mtrs. forcibly took her inside a room where 3-4 Kashmiri labourers were residing. Accused Riaz followed him. Accused also called their accomplice Ayub (accused No.3). Neetu asked the Kashmiri labourers to leave the room. Thereafter, he raped the prosecutrix. While doing so he asked Riaz to keep a watch outside the door. Riaz also raped the prosecutrix inside the room. Thereafter they left the prosecutrix and her husband in the Hawaghar and proclaimed that if the incident was narrated to anyone they would be killed. Prosecutrix and her husband kept sitting in the Hawaghar throughout the night. In the morning they went to the Police Station and lodged FIR No. 328/98 dated 31.12.1998 at Police Station Solan. 3. Investigation was carried out by SI Trilochan Dutt (PW- 18). He visited the spot where prosecutrix identified the accused. Police recovered Chadar (Ext.P-1), blood stained hanky (Ext.P-2) vide recovery memo Ext.PW-7/A dated 31.12.1998, Chadar and hanky were also having stains of semen. Prosecutrix was got medically examined from Dr. Archna Gupta (PW-14), who issued report (Ext.PW-14/A). Prosecutrix was found to be pregnant and was advised to undergo further medical check up. She was examined by Dr.B.K.Bhardwaj (PW-2), who opined that prosecutrix was carrying pregnancy of 12 weeks. Garments of the prosecutrix i.e. Salwar (Ext.P-3), Kurta (Ext.P-4), undershirt (Ext.P-5) and Salwar (Ext.P-14) was taken into possession by the police. Accused were also got 3 medically examined through Dr.Naveet Handa (PW-1), Dr.Rakesh partap (PW15) and Dr. Anuj Gupta (PW-16) and their clothes containing semen were also recovered and sent for chemical analysis to the Forensic Science Laboratory and report of the Chemical Analyst (Ext.PW-18/M) was taken by the police. Disclosure statement (Ext.PW-5/A) dated 2.1.1999 was made by accused Neeraj and police recovered knife (Ext.P-6) vide recovery memo (Ext.PW-7-C). With the completion of investigation, challan was presented in the Court for trial. 4. Accused Neeraj Verma and Riaz were charged for having committed offences punishable under Sections 366, 376, 506 read with Section 34, IPC and accused Ayub was charged for having committed offences punishable under Section 342, 366 read with Section 109 and 506, IPC. Accused did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined 18 witnesses and statement of the accused under Section 313, Cr.P.C. was also recorded. 6. Court below acquitted the accused by giving benefit of doubt, hence the present appeal. 7. There is not much dispute about the fact that prosecutrix was not minor. Even though Dr. Navneet Handa (PW-1), who carried out dental examination for determining the age has deposed that age of the prosecutrix “could be assumed to be more than 12 years and less than 18 years”, but we find that prosecutrix was major. Variation in age, as opined by the doctor is of 6 years. There is much uncertainty attached to the opinion of the expert. It is presumptuous. As opined by Dr.B.K.Bhardwaj (PW-2) she was 4 pregnant. In the Court prosecutrix herself does not disclose her exact age. To the Police she has disclosed her age to be of 19 years. To the same effect is the testimony of her husband. 8. Out of 18 prosecutrix witnesses, Dr.Naveet Handa (PW- 1), Dr. B.K. Bhardwaj (PW-2), Dr. Archana DGupta (PW-14), Dr.Rakesh partap (PW-15) and Dr. Anuj Gupta (PW-16) are doctors, who have either examined the prosecutrix or the accused. C. Mani Ram (PW-10), C.Ranjit Singh (PW-11), C.Promila (PW-12) and H.C. Rajesh Kumar (PW-13), are police officials whose testimonies are formal in nature. 9. Testimonies of remaining witnesses i.e. prosecutrix (PW- 3), her husband Pujari (PW-4), witnesses to the recovery Prem Singh (PW-5), Ved Parkash (PW-6), Ravi Gupta (PW-7), Surender Kumar (PW-8), Lekh Ram (PW-9), Bashir Ahmad (PW-17) and the Investigating Officer SI Trilochan Dutt (PW-18) are relevant. 10. We shall firstly discuss the statement of the Doctor (PW- 14) who medically examined the prosecutrix. According to her no blood and semen stains were present on thigh, labia majora and minora and pubic hair. No mark of injury were seen on the external genitalia of the prosecutrix. There was no injury in the vagina. Prosecutrix was habitual to sexual intercourse. This witness did not find any stains of semen on the clothes of the prosecutrix. She also did not find any marks of assault/injury on her body. Husband of the prosecutrix was present at the time of medical examination and police identified his thumb mark on the MLC issued by her. 11. Accused Neeraj is alleged to have made a disclosure statement (Ext.PW-5/A) in the presence of Prem Singh (PW-5) and Ved Parkash (PW-6). Prem Singh (PW-5) has not supported the 5 prosecution case at all. In spite of his extensive cross-examination by the Public prosecutor, nothing fruitful could come out from his testimony. He states that no statement was made by Neeraj Kumar in his presence nor could he identify him in the Court. Testimony of the Investigating Officer (PW-18), for the reason which we shall discuss hereinafter, is not worthy of credence. Hence it cannot be said that prosecution has been able to prove the said fact beyond reasonable doubt. 12. Weapon (Ext.P-7) is alleged to have been recovered in the presence of PW-7 and PW-8. Even they have not supported the prosecution and in spite of cross-examination by the Public Prosecutor nothing fruitful could come out in their testimonies. Ravi Gupta (PW-7) states that the document (recovery memo) already stood prepared and he simply put his signatures without going through the contents thereof. Signatures were obtained in his shop where 2-3 police men had come. He states that Knife was already in the hand of SHO. According to the prosecution recovery took place from the premises of the accused in the presence of this witness. This version thus stands contradicted. Testimony of Surender Kumar (PW- 8) is also some what to this effect. This witness also states that prior to his reaching the spot article was already seized. This part of their testimonies goes unrebutted. Consequently even this fact cannot be said to have been proved by the prosecution. 13. PW-9 has also not supported the prosecution. In fact his unrebutted testimony makes the prosecution case further doubtful. According to him, he has a tea-stall next to Hawaghar. He did not see anyone sleeping in the Hawaghar. From the prosecution evidence, it is evident that in close vicinity of Hawaghar there is 6 Sainik Rest House and Cinema Halls. It is his version that in the Rest House there is always a Chowkidar and in the Cinema Hall movie show from 9 p.m. till mid night was on. 14. Chadar and hanky were recovered in the presence of Bashir Ahmad (PW-17). Even he has not supported the prosecution. 15. It is the version of the prosecutrix that she had come to Solan with her husband, children and her father-in-law. Since it was cold her father-in-law went home to leave the children. She does not state where her home is. Prosecution has not examined her father- in-law. She further states that while she and her husband were sleeping in the Hawaghar two persons awoke them and one of them pushed her husband and asked him about their whereabouts. Accused Neeraj Verma who was one of them introduced himself as a police man. Thereafter he took out a knife and kept it on the body of her husband. He then caught her hand and after dragging took her to a room where 2-3 Kashmiri labourers were sitting. He asked them to get out from the room and thereafter raped her. Then the other boy whom she identified to be Riaz, raped her. Third boy, whom she identified as Ayub came later on. Next day, till about 10.30 a.m. she waited for her father-in-law to return but since he did not come she along with her husband went to the Police Station and lodged the report. Police took into possession Chadar and hanky from the spot of crime. 16. We find the version of the prosecutrix not to inspire confidence. Prosecution case appears to be doubtful. Father-in-law has not been examined in Court. She does not disclose his name or the place where he had gone to leave their children. Kashmiri labourers have not been examined in Court or associated during 7 investigation. According to her she cried but was threatened by Nitu. Had she cried neighbourers would have heard her. Incident took place in a thickly populated residential area. Her version that she was dragged is not corroborated by medical evidence on record. She states that she did not know the accused from before but could identify the accused as there was light in the Hawaghar. Admittedly in this case no test identification parade was conducted by the police. Her statement that she could identify the accused in the light of Hawaghar stands contradicted by her husband, according to whom there was absolute darkness in the Hawaghar. She admits that hanky did not contain any stains of blood. This version of hers renders the report of the Chemical Examiner to be false. According to the Chemical Examiner hanky contained blood. Prosecutrix has also deposed that she had washed handkerchief before it was taken by the police. Semen found on the clothes of the prosecutrix could not be linked with the accused. 17. According to the Investigating Officer, he did not record any statement of the prosecutrix nor did she put any thumb mark on the report lodged with the police. According to him even Pujari (PW- 4) did not sign the statement. Now according to the prosecutrix she had made a statement before the police wherein she had also put her thumb impression. FIR (Ext. PW-18/A) does not bear thumb impression of the prosecutrix. Now if this were so, then the fact that no identification parade was carried out gains significance and importance. How were the accused identified? Where is that report? Why has the police not placed the same on record? To us, it appears that material piece of evidence stands concealed by the prosecution. Investigating Officer is categorical in his deposition. He states that 8 husband of the prosecutrix had signed the statement but the statement placed on record does not bear any signatures but is thumb marked. All this renders the prosecution case to be doubtful. 18. According to Pujari, at the time of examination of his wife he never visited the hospital. He also did not meet the Doctor or put his thumb impression on any document. Now this version of his stands contradicted by MLC (Ext.PW-14/A) and statement of Doctor (PW-14) itself, which we have already noticed earlier. 19. With regard to the presence of the accused we find the statements of the prosecutrix and her husband to be contradictory. According to the prosecutrix two persons came to Hawaghar whom she identified as Neeraj Kumar and Riaz. She specifically does not mention Ayub by name. She only mentions that a third boy was later on called by Riaz. However, according to the deposition of her husband, Neeraj Kumar and Riaz came to the spot first and then Neeraj asked Riaz to call the third boy who was Ayub. Further according to the prosecutrix, Ayub came after she had been raped by both Neeraj and Riaz. If this were so, then how was identity of Ayub known to the witness. That apart, her husband has deposed that only after the third boy came, the other two caught his wife and took her inside the room where she was raped. 20. Coming to the testimony of the Investigating Officer (PW-18) we find that he is telling lies. According to him, Neeraj was arrested on the day the matter was reported to the police. In the FIR (Ext.PW-18/A) there is no description of Neeraj. It is not that there is only one Neeraj. Neeraj is a common name and Solan is a big township. On what basis did the Investigating Officer come to the conclusion that it was accused Neeraj, who had committed the 9 alleged crime. It is not clear. Admittedly, no test identification parade was carried out by him. This witness admits that the room where prosecutrix was raped, is in a building known as Rajasthan Bhawan, which is situated in a thickly populated and residential area. Offence is alleged to have been taken place at about 11/11.30 p.m. Cinema hall and Sainik Rest House is in close vicinity. There are also houses where people reside. Surprisingly Investigating Officer did not find it necessary to inquire the matter from anyone of the neighbours, not even the Kashmiri Labourers. It has come in the testimony of Shri Ravi Gupta that the room where prosecutrix was raped had a common wall with the room occupied by Dr.V.C.Jain. Dr.S.P.Jain and Dr. Baba also lived there. Investigating Officer has not examined them. The only explanation given is that he found the premises locked. He only went once. He could have gone again. Importantly, he admits that prosecutrix had disclosed her age to be of 19 years. If this was so, then what was the necessity of getting her age determined by medical examination. He further states that “There were no finger prints, so knife was not sent to Finger Print Expert”. On what basis did he come to this conclusion. It is the case of the prosecution that accused Neeraj Kumar had threatened to kill the complainant with the knife which he had caught with his right hand. It is not the case of the prosecution that finger prints were erased by the accused. This material evidence has been concealed by the Investigating Officer. It is not the case of the prosecution that accused are residing at the place of crime. Therefore, it is unbelievable that they would continue to remain at the place of crime even after a period of 18-20 hours. Accused Neeraj was arrested from the place of crime at about 9 P.M. on 31.12.1998. He has 10 carried out the investigation in an extremely tardy manner. All this raises doubt about the prosecution story. 21. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is made out. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. January 7, 2011 (Sanjay Karol) (C) Judge.