IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 603 of 2002 Date of Decision : August 5_ , 2011 State of H.P. Appellant Versus Subhan Deen and another Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General for the appellant-State. For the respondents : Mr. Shrawan Dogra, Advocate, for the respondents. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 10.4.2000, accused were put to trial. In terms of judgment dated 3.6.2002 passed by the learned Sessions Judge, Chamba Division, Chamba, H.P., in Sessions Case No. 28 of 2000, titled as State of H.P. versus Subhan Deen and another, accused stand acquitted of the charged offences. Whether reports of Local Papers may be allowed to see the judgment? 2 2. According to the prosecution, on 10.4.2000 prosecutrix (PW-1) was sleeping with her daughters Kumari Shamim Begum (PW-7) and Amina in her house in village Kanda, Pargana Tissa, Tehsil Churah, District Chamba. On that day her husband was not at home. At about 10.00 p.m. accused forcibly entered her house by breaking open the latch of the door. They physically dragged, assaulted and forcibly raped the prosecutrix. She cried for help but none came forward. The accused also tore her clothes. In the morning when her husband Sh. Dilo Ram (PW-2) returned she narrated the incident to him, who along with her came to Chamba and contacted their Advocate Sh. V. V. Mahajan (PW-6), who got complaint (Ext. PA) typed and presented it before the Court of Chief Judicial Magistrate, Chamba who in turn forwarded the same to S.H.O. Police Station, Tissa on 11.4.2000 itself for investigation. Based on the same F.I.R. No. 21 of 2000 (Ext. PG) was registered at Police Station, Tissa on 19.4.2000. Investigation was carried out by S.H.O. Jagdish Chand (PW-8) who recorded the statements of the parties, got the prosecutrix medically examined through Dr. Sneh Lata (PW-9) and after investigation of the case, presented challan in the Court for trial. 3. The accused were charged for having committed offences punishable under Sections 452 and 376 both read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 3 4. In order to prove its case prosecution examined nine witnesses and the statements of the accused under Section 313 Cr. P.C. were also recorded, in which accused took up the defence of false implication and animosity. In their support they also examined two witnesses. The trial Court acquitted the accused of the charged offences. Hence the present appeal. 5. Complaint (Ext. PA), according to Sh. V. V. Mahajan (PW-6) was got written by him on the asking of the prosecutrix (PW- 1). Now in the said complaint it is nowhere written that the accused forcibly entered her house by breaking open the latch of the door. Though prosecutrix narrates this fact in Court, but however her version stands belied by the version of PW-6 who states that the complaint was read over and explained to the prosecutrix, who admitted the same to be true and correct, before the same was filed before the Court. Further, prosecutrix has not produced the broken latch to the police. No other witness has deposed in relation to this fact. Hence it cannot be said that prosecution has been able to prove the case against the accused, with regard to an offence punishable under section 452 read with Section 34 of the Indian Penal Code. 6. In relation to the other charge, it is the case of the prosecutrix that after the accused forcibly entered her house, they committed sexual intercourse with her without her consent. She raised hue and cry but none came to help her. This process went on for about one hour. This version appears to be highly improbable. 4 She admits that her two daughters were sleeping with her at that time. Now in Court only one daughter namely Shamim Begum (PW- 7) was examined. She is a child witness and the Court has found her fit to depose. But she simply states that she was sleeping with her mother and when she heard some noise she got up and found her mother weeping. Her clothes were torn and the accused were scuffling with her. However they immediately fled away from the spot. She does not state anything about the rape. Further according to prosecutrix, the incident was narrated by her to her neighbour, Sh. Gulam Rasool (PW-3) who has not supported the prosecution at all. In spite of being cross-examined by the Public Prosecutor, nothing fruitful could come out in his testimony. We find the statement of the prosecutrix not to inspire confidence at all. There are several contradictions and improvements in her deposition. She admits that there is animosity between her family and the family of the accused and in fact there is prior litigation pending between the two families. She also admits that in the neighbourhood there are 3 – 4 houses where also families reside. According to her she kept on crying for one hour and yet none came from the neighbourhood to defend her. The version appears to be highly improbable. When confronted with her statement (Mark-D) she denies having told her Advocate that she had herself opened the door for the accused. She denies having told the police that same day there was quarrel with the accused with respect to the theft of grass which fact is 5 recorded by the police in her statement under Section 161 Cr. P.C. with which she was confronted. 7. This witness admits that police station is just at a distance of 1 – 1½ kilometers from her house, yet she or her husband did not report the matter directly to the police but travelled all the way from a far off place i.e. Churah to Chamba to lodge a complaint under legal advise. 8. Statement of the husband Sh. Dilo Ram (PW-2) also does not inspire confidence. According to him when he reached his house in the morning, he found his wife crying whey she narrated the incident to him. When confronted with his statement recorded under Section 161 Cr. P.C. (Mark-D/2) he states that he had told the police that he had found his wife crying which fact is not mentioned therein. Even he admits that there is litigation and animosity between the two families. In any event he is not a spot witness. He did not report the matter to the Panchayat but straightaway came to Chamba. He also did not get the incident verified from his neighbours. There is nothing on record to justify his absence from house the same day. 9. Significantly statement of PW-7 was recorded by the police after a period of three months. Why so, has not been explained. This only renders the prosecution version to be further doubtful. 10. Further we find that there is no medical evidence to link the accused with the alleged crime. Also no marks of injury were 6 found on the body of the prosecutrix as per the version of Dr. Sneh Lata (PW-9). 11. We find statements of the prosecution witnesses not to have proved the case of the prosecution. It cannot be said that prosecutrix was raped by the accused persons. The testimony of the prosecutrix herself does not inspire confidence. There is no cogent, convincing, reliable evidence on record to prove the charged offence. 12. 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 versus 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 persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. August _5_, 2011 (PK)