1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 278 of 2001 Decided on December 31, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Chain Singh ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? No For the appellant: Mr.Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Ms.Bhawna Dutta, Legal Aid Counsel. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 30.1.2001, passed by Learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in Sessions Case No. 10-N/2000, under Sections 376, 341 and 506 of the Indian Penal Code, acquitting the alleged accused/respondent. 2. The prosecution case is that on 9.11.1999, at about 5.15 P.M. when school of the victim / prosecutrix was over she was returning to her home and it was only about 1 km left to reach her home, while victim / prosecutrix was passing through the path, accused Chain Singh suddenly appeared from the 2 bushes and pushed her and had laid her down and tried to sexual assault the victim. On her protest, accused / respondent took out a knife from his pocket and challenged her saying that in case she raised alarm she would be killed. After breaking the string of the salwar, accused / respondent committed sexual intercourse with the victim / prosecutrix. Thereafter, the accused detained the victim / prosecutrix for about 20-25 minutes on the spot. In the mean time, brother of the victim / prosecutrix, namely, Rajesh Kumar and maternal uncle / Mama Dharam Chand grazing goats in the jungle were seen near the place of occurrence, when victim / prosecutrix raised alarm and with their help the victim / prosecutrix was rescued and was taken to home. Thereafter, FIR was lodged on 10.11.1999. The victim / prosecutrix was medically examined. 3. After investigation, the accused was charged for the aforesaid offences. In order to prove its case, the prosecution has examined as many as 8 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. PW.1 Dr.Ashutosh Joshi examined the victim / prosecutrix (PW.2). On medical examination PW.1 did not notice any blood stain and injury on private parts of victim. No scratch mark or injury on her body was also noticed, however, PW.1 gave an opinion that possibility of sexual assault cannot be ruled out. In cross-examination PW.1 has stated that if a girl is dragged and raped in the bushes or on the hard surface, there 3 is every possibility of injury on her hip and buttocks etc. PW.1 had also observed that string of salwar was not broken. PW.1 has also opined that if there is a sexual intercourse with the consent of the parties then there is no possibility of injury on the person of the girl. 5. The contents of FIR (Ex.PW2/A) recorded at the instance of victim / prosecutrix, indicate that the victim / prosecutrix a student of 10+1 was returning to her home on 9.11.1999 at about 5.15 P.M. when was about 1 km away to reach her home, accused Chain Singh (Rajput by caste) already hiding in the bushes suddenly appeared and pushed her and laid her down, when PW.2 (victim / prosecutrix) tried to raise alarm, her throat was pressed and her both arms were twisted and accused forcibly tried to rape her, on asking by her time and again not to do that he took out a knife from his pocket and threatened her that if she will raise alarm she would be killed, as such, being afraid she kept silent and accused / respondent after breaking the string of her salwar committed rape on her. After sexually assault, victim / prosecutrix (PW2) was detained there for about 20-25 minutes. In the meanwhile, her brother Rajesh Kumar and maternal uncle Dharam Chand, who were grazing goats in the same forest, came closure. On seeing them, victim / prosecutrix raised alarm and her brother Rajesh came to the spot and with great difficulty rescued her from the clutches of the accused, however Rajesh Kumar, brother of victim was assaulted by the accused with a knife blow on his 4 head and thereafter on the next day FIR was lodged. Whereas, PW.2 (victim / prosecutrix) in her endeavour to support prosecution case has stated that accused broke the string of her salwar and salwar was also torned and committed rape. Accused threatened victim / prosecutrix with a knife by saying that in case she raised cries he would kill her. Accused pressed her neck and after committing rape, victim / prosecutrix was retained on the place of occurrence for 20-25 minutes and on hearing cries when her brother reached to the spot, at that time accused was committing rape on her and during the process of committing rape, her brother rescued her. Thereafter, her brother brought her to home where she narrated entire incident to her mother. Mother of the victim / prosecutrix bathed her with hot water and her clothes were also washed. After discussing the matter at home, next day victim / prosecutrix went to the Police Station, Nurpur to report the matter. In cross-examination PW.2 had admitted that several boys and girls from her village were studying in that Senior Secondary School Raja-Ka-Talab. The victim / prosecutrix (PW.2) has further admitted that the path through which she was coming was a common path and normally people used that path. PW.2 has further admitted that boys and girls of her village come and go in group to the school. The victim / prosecutrix has further stated that Simi Devi (her mother's sister daughter) and she was also studying in plus 2 in the said 5 school. PW.2 has also stated that she did not receive any injury during sexual intercourse of about 20-25 minutes, even during that period she raised alarm and struggled for rescuing herself from the clutches of the accused, by giving nails scratch on the body of the accused, however, PW.2 did not receive any injury when she was trying to rescue her from the accused. During the scuffle she also struggled with hands and feet. PW.2 also stated that when accused was committing rape, at that time salwar was above her knees. 6. On analysis of FIR (recorded at the instance of PW.2 (victim / prosecutrix) as well as the testimony of PW.2 recorded in Court, it appears that PW.2 (prosecutrix) had indicated that her neck was pressed and her both the hands were twisted and after sexual assault, she was detained at the place of incident for 20-25 minutes, and after observing her brother, Rajesh Kumar and her Mama / Dharam Chand, near the place of occurrence while they werer grazing goats and sheep, she raised alarm and with great difficulty she was rescued by her brother and while going back accused / respondent gave a knife blow on the head of her brother, where such narration is missing in the testimony of PW.2 given before the Court, where she stated that during the period she was being sexually assaulted for about 20-25 minutes, her brother Rajesh came on the spot and observing the sexual assault, rescued her. Surprisingly her maternal uncle Dharam Chand present on the spot was not examined by the prosecution. In view of the 6 testimony of PW.2, she was brought to her home by her brother Rajesh, surprisingly her maternal uncle who accompanied Rajesh kept standing away but did not render any help in rescuing PW.2 from the clutches of the accused / respondent. From the testimony of PW.2, it also appears that several boys and girls from her village were studying at the relevant time in that school and her close relative was also studying there and the path on which she was coming to home was also commonly used by the public at large, however, surprisingly when the school was over, then how the victim / prosecutrix was going alone and was not even aware about the accused/ respondent. Even after sexual assault name of the accused / respondent was told to her by her brother Rajesh. PW.2 has very categorically stated that sexual intercourse continued for 20-25 minutes and at that time her salwar was above her knees and she had made cries and also made endeavour to rescue herself from the accused. The victim / prosecutrix also assaulted the accused with hands and feet and during that struggle surprisingly she did not receive any injury on her body. Testimony of PW.2 alone appears full of improbabilities and contradictions in reference to the narration made in the FIR. 7. PW.3 Sh.Rajesh Kumar brother of the victim / prosecutrix (PW.2), has stated that while he was coming back from fields, Dharam Chand (Mama) met him on the way and joined him and when they reached near Dharat-Ka-Nala at about 6.00 P.M., after hearing cries from nearby area they went 7 below the road about 20 feet and observed that accused Chain Singh was committing rape on her sister. PW.3 tried but failed to catch hold of the accused as he was carrying knife in his hand and gave him assault as a result of which Rajesh suffered injuries. After that accused Chain Singh ran away from the spot by carrying his pant in his hand, thereafter, victim / prosecutrix was brought to her home, wearing torned clothes. PW.3 further stated that he cannot say that knife (Ex.PC) was the same by which he was assaulted by the accused. In cross-examination PW.3 has stated that he observed his sister being sexually assaulted and at that time her salwar was lying by her side and pant belonging to the accused was also lying by his side. The place of occurrence was sloppy and PW.3 did not see superficial injury or sign of injury on the body of her sister, however, PW.3 had observed neck of her sister reddish in colour. As per testimony of PW.3 his sister put on her clothes in his presence and it took about 15-18 minutes in wearing her clothes. PW3 has further stated that his maternal uncle Dharam Chand kept standing on the road and had also seen her sister wearing her clothes. However, PW.3 was not sure that whether his maternal uncle had seen the accused while assaulting him with knife. In view of testimony of PW.3, he had caught hold the accused but he ran away from the spot. However, maternal uncle of PW.2 did not try to catch hold the accused. From the testimony of PW.3, contrary version is appearing from the narration made in FIR 8 that Rajesh along with Dharam Chand, reached near the spot and came to rescue PW.2 (victim / prosecutrix) on hearing her cries while grazing goats and sheep, whereas PW.3 has stated that when he was coming back from the fields, at that time, he met Dharam Chand, his maternal uncle, who joined him and when they reached near Dharat-Ka-Nala at about 6.00 P.M. they heard cries of victim / prosecutrix. In view of testimony of PW.3 maternal uncle / Dharam Chand had not seen the accused assaulting him with a knife and was standing on the road near the place of occurrence and had also observed victim / prosecutrix while putting on her clothes after sexual assault. Such aspect shows that Dharam Chand was not on the spot as he also did not accompany to take the victim / prosecutrix to her house. PW.3 has also gives contrary version by indicating that he has observed her sister being raped, whereas, apparent contradiction is appearing from the testimony of PW.2 / victim regarding the presence of her brother Rajesh Kumar. In view of testimony of PW.2, when accused was going from the spot at that time he assaulted her brother Rajesh with a knife. Further, the testimony of PW.3 is itself full of improbabilities that why victim / prosecutrix would be kept for 20-25 minutes after sexual assault and the accused would be waiting for the arrival of someone interested in victim / prosecutrix. The testimony of victim / prosecutrix is full of contradiction that her salwar was above knees when she was being sexually assaulted, whereas 9 in view of testimony of PW.3 made in cross-examination, the salwar of the victim / prosecutrix was lying by her side and pant of the accused was also lying beside. It is improbable that PW.2/ victim after sexual assault could have taken 15-18 minutes in wearing her clothes out of which Salwar was said to be torned. Testimony of PW.2 if compared with her narration made in FIR is also compared with the statement of PW.3, then it would definitely be revealed that PW.3 was not on the spot and had not seen the occurrence and occurrence of incident is also doubtful. For the sake of arguments, if it is taken that PW.2 / victim was sexually assaulted, in that condition, circumstances indicate that PW.2 being major girl aged about 20 years was certainly consenting party for sexual intercourse in question. 8. Testimonies of PW.4 Yusuf, Pradhan gram Panchayat Banoli, PW.5 Sh.Handoo Ram, PW.6 Sh.Dharam Chand, PW.7 HC Deep Chand and PW.8 SI Om Prakash are not very material as we have already noticed that testimony of PW.2 is not inspiring confidence. 9. In view of the facts and circumstances, contradictions and improbabilities, the prosecution has failed to bring home the guilt to the accused and learned Trial Court has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, there is no scope of interference in the findings given by learned 10 Additional Sessions Judge. Accordingly, present criminal appeal, being devoid of any merit, is dismissed. 10. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge December 31, 2010 (Surinder Singh) (Purohit) Judge